Monday, June 27, 2005

Ninomania this isn't

Hey there, sports fans.

As a direct and proximate result of scanning the decisions in this past March's big Supreme Court decision on the ADEA (age discrimination in employment act) and whether it authorizes so-called 'disparate impact claims' (it does, but that didn't help the plaintiffs; their complaint was held not to state a claim for such disparate impact discrimination), I have come to a further conclusion:

I like the way Thomas votes a lot of the time, because he's principled. In Smith v. City of Jackson, Miss., 125 S.Ct. 1536, ___US ____, (Mar. 30, 2005), which split 5-3 [edit: sort of, see below in brackets] (one justice recused, the Chief), Justice Scalia sided with the majority, [edit: Justice Scalia wrote the primary concurrence, which gave the parts he joined, but which the other Justices did not, the force of law with a 5-3 majority; blog policy will be to visibly correct errors while preserving them for posterity, and inserting corrections in brackets or bold or both as needed], not because he really agreed that these uppity plaintiff types should be able to state a claim for disparate impact (he doesn't buy it) but because he'd rather defer.

Justice Scalia is a big fan of deference. How can we have "small government," meaning apparently a small, inactive judiciary, if we don't let government get away with whatever it wants? [A brief pause while I consider the artistry and depth of what I just wrote]

Anyhoo, if an agency wants to violate constitutional rights, you can guess that Scalia will tromp on it, unless he happens to think that the right doesn't or shouldn't exist. So we see the Executive department getting curtailed when it argues that certain things within its purview are entirely beyond the jurisdiction of any federal court to even hear, and we see the Supreme Court politely disagreeing. Scalia would not be a likely vote in favor of a given terrorist suspect, but he has no love for utterly untrammeled Executive authority. Point for him.

But in Smith, as I just said, Scalia found a "classic case for agency deference," in this case to the E.E.O.C.

Back to Thomas (you remember I started with him). He didn't write the dissent the second concurrence in that case, or at least it's not his name on it; he joined O'Connor's dissent, along with Justice Kennedy. It's a marvelous opinion and I urge you all to read it.

In this opinion, which I remind you Thomas is joining, the dissent opinion (per O'Connor) slams Scalia for being a pushover. Do I exaggerate?

See for yourself (text thanks to findlaw; case summary available at oyez and from nat'l school bd. ass'n). The dissent [I give up: I'm going to stop putting strikethroughs where I wrote 'dissent'; please take it as given that all participating Justices concurred in the result] in part B of its section III quotes Scalia's "classic case for" line, and replies, "I disagree." Pow! - another judicial bench-slap, as A3G might write.

Deference is fine, but there's a time and a place for it:
When an agency interpretation of a statute is reasonable (can't be irrational, etc.) and when statutory language is ambiguous (can't be clearly contrary to the interpretation), and the agency must have authority to interpret that statute. For my money, Scalia's all too ready to lay down anytime an agency interpretation is one he can sign onto. Other justices are more skeptical; they'll overrule even a plausible-sounding interpretation when it's actually wrong, or when it's contrary to what they see as the clear meaning of the statute (always up for grabs) or when they think the agency's interpretation is not really an authorized one.

Me, I support some particular agency actions, hate others, and often wish for stricter judicial scrutiny of what I believe are pretextual reasons for such action, particularly post-hoc reasons. If government can't explain what it's doing, and why it should be doing it, and the action is not in fact authorized, I can't imagine why we should let it do it. "Making stuff up after the fact" is well and good for mankind in general ("Man is not a rational animal, he is a rationalizing animal." - Heinlein) but is a no-good way to run a country.

Another Thomas vote against a Scalia position, another piece of evidence he's no push-over, no puppet, no intellectual midget, no right-wing bot, no clone of anyone else on the court. Thomas votes them as he sees them.

A salute to O'Connor for a nice piece of legislative analysis, and a tip of the hat in respect to Thomas, one of the Brightest Supreme Court Justices You'll Ever Meet, and the youngest on the bench. No insult to other, older, and also very very bright justices intended, of course.

And that's the way it is.

[comment on the edit: I shall feel free to correct typos, errors of style, my own word choice, and errors of prudence and/or civility without necessarily preserving them; I shall note when I make substantive changes; please speak up in the comments or by email to unused and unusable (all one word) at gmail if you see changes necessary for accuracy or fairness.]

[further update: I note that, based on an old district court's reading, I am persuaded that at at least at one point, it was evident that Congress intended to allow liability under the ADEA because of its two-tiered structure for damages. "Congress clearly intended to create a two-tiered liability system in the ADEA. Thurston, 469 U.S. at ----, 105 S.Ct. at 624-25. Acts which are intentional are subjected to double damages. If the ADEA reached only to intentional acts, all violations would be subjected to double damages and there would be no two-tiered system." E.E.O.C. v.Gov. Mifflin Sch. Dist, 623 F. Supp. 734 (E.D. Pa. 1985). Now, I'd have to go back and actually read the Smith majority to figure out if that's what persuaded them, but the district court opinion seems slam-dunk to me, read the whole thing if you have access to it.

Remaining mystery: what was the majority's reasoning? For the answer... read the whole thing.]


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