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.

Most Popular

Politics & Policy

Demagoguery Is Not Leadership

The government of Prime Minister Jacinda Ardern in New Zealand has, with the support of the opposition, decided to enact fundamental changes in the nation’s firearms laws less than a week after the massacre at two Christchurch mosques. This is the opposite of leadership. It is also an example of why ... Read More
White House

The Media’s Disgrace

There will soon enough be an effort to memory-hole it, but the media coverage of the Russia investigation was abysmal and self-discrediting — obsessive and hysterical, often suggesting that the smoking gun was right around the corner, sometimes supporting its hoped-for result with erroneous, too-good-to-check ... Read More
Politics & Policy

What Was Trump So Annoyed About?

One of the stranger arguments that I heard throughout the Mueller saga -- and am hearing today, now that it's turned out to be a dud -- is that Donald Trump's irritation with the process was unreasonable and counterproductive. This tweet, from CNN's Chris Cilizza, is a nice illustration of the genre: Donald ... Read More
Economy & Business

Who’s Afraid of Stephen Moore? And Why?

In the Middle Ages, guilds held a monopoly on who could work in a whole range of trades, from blacksmith to brewer. The guilds set high hurdles for new entrants, or blocked them entirely, in order to limit competition. France's minister of finances Jean-Baptiste Colbert once ordered all French crafts to form ... Read More