The Supreme Court ruled today, in Smith v. City of Jackson, that employers can be held liable for violating the Age Discrimination in Employment Act even when there is no evidence that a challenged policy does not discriminate on its face, was not intended to discriminate, or has not been applied evenhandedly—so long as it has a “disparate impact” on the basis of age. The employer still has the opportunity to persuade a judge or jury that the challenged policy is “reasonable,” but of course that is a roll of the dice, and the end result—as is always the case under the “disparate impact” approach—is that many employers will either abandon perfectly sensible and productive policies or else adopt surreptitious quotas to make sure there is no disproportionate effect in the first place. Most disappointing of all is that fact that the decision was 5-3 (Chief Justice Rehnquist did not participate), and the defecting conservative justice this time was not O’Connor, not Kennedy … but Scalia! Say it ain’t so, Nino.