Bench Memos

Those Sneaky Corporatist Justices

As I explained in my testimony at Elena Kagan’s confirmation hearing, “allegations that the Roberts Court engages in conservative judicial activism frequently involve a highly selective skewing of the evidence—drastically inflating the supposed importance of cases that fit (or that are distorted to fit) the desired narrative while simply ignoring those that don’t.”

The Court’s ruling today in Thompson v. North American Stainless is one that critics of the Roberts Court will do their best to ignore. In that case, Justice Scalia, writing for the Court, ruled that third-party retaliation claims are permitted by Title VII—specifically, that someone who contends that he has been fired (or otherwise punished) by his employer as retaliation for another employee’s complaint about job discrimination may sue the employer under Title VII. (In the particular case, plaintiff Thompson alleged that North American Stainless fired him in order to retaliate against his fiancée for her filing an EEOC charge of sex discrimination.)

That’s certainly not a pro-employer result from our supposedly “corporatist” Court.

Some folks may try to discount the significance of the ruling on the ground that it was unanimous—and therefore, so the line would go, must have been so easy that no one could plausibly reach any other result. One small problem with that line is that all four courts of appeals to have addressed the issue decided it the other way (as the first paragraph of the en banc Sixth Circuit opinion below states). By my quick count, of the 25 appellate judges to address the issue, 18 decided it in favor of the employer. Further, those 18 included Carter and Clinton appointees, such as Eighth Circuit judge Diana Murphy. So the fact that the Supreme Court’s ruling was unanimous ought to further dispel the Left’s reckless myths about the Court.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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