I was at the Court today for its announcement of six brief opinions. While there, I was lucky enough to see a Breyer Blooper.
Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous. Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising. Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion. It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.
A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact. The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members. The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred. Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.
As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade. The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–”single entity theory”–in favor of another–”Rule of Reason”–for the lower courts to use on remand in determining illegality.
The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor. The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States. The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.” In other words, any action that makes this aspect of criminal law less scary is unconstitutional. Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, [...] out of private hands and turn it over to an organized government, acting on behalf of all the people.”
Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts's dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson. Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence. A few more years and a dozen more opinions are required for that observation to become a conclusion, however.
Justice Stevens was today’s busiest man. He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.
In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old. Justice Scalia, joined by Justice Thomas, dissented.
The Court also granted certiorari in six cases to be heard next term. Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.
Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial. In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.
And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant. Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.
My column highlighting my experience out in line this past week is now up at the ABA Journal:
In November 1968, Jet magazine ran an item called “Black Chicago Firemen Organize Own League.” Co-founder Jim Winbush, then 27 years old, said that “the prime goal” of what’s now the African American Firefighters League of Chicago “is to increase the number of Negroes employed by the fire department.”
On Monday morning, Jim Winbush, now retired, stood in line outside the Supreme Court of the United States to support a younger generation of black Chicago firefighters in the fight that he began over 41 years ago.
Read the rest here.
When I woke this morning at 2:40am, I thought that I had surely lost the first spot in line. After all, Holder v. Humanitarian Law Project is the Court’s first First Amendment case arising out of the past decade’s war on terror. But the winter cold and late night rains conspired against my contemplated competitors: when I power-walked up to the Court, no one else was there.
A few thoughts before I suit up and head back out:
- I have no idea how HLP will turn out. No idea at all. That makes this morning’s oral argument all the more exciting and will hopefully provide for a challenging, yet rewarding, write-up this afternoon. In the meantime, listen to my former boss‘s case preview.
- Opinions today. Expecting a few dogs, but if the Court hands down, say, Salazar v. Buono, Free Enterprise Fund and Beckstead and Watts, LLP v. Public Company Accounting Oversight Board, or United States v. Stevens, I’ll have some comment up this afternoon.
- The line didn’t really get going until closer to 7am. I am shocked at just how few people got to the Court before dawn. Those who did arrive, however, were all law students, and undergraduate aspiring lawyers. As such, although I had a great time getting to know everyone in line, I will not be writing a vox populi column from this morning’s experience. Instead, look for my report from yesterday’s Lewis v. City of Chicago line to be posted by tonight.
- I’ve started to strike up relationships with the Court’s night shift police officers. They’re friendly, talkative, and have great stories from their years serving at One First. Too bad they won’t go on the record…but I’ll keep trying.
- So very glad that tomorrow’s cases do not compel F1@1F coverage. I love being out there, but I do also love a good night’s sleep.
Shower time. More later today.
Here’s my write-up from this morning’s oral argument, also available at the ABA Journal. Meanwhile, three hours of sleep, a morning full of arguments, and an afternoon full of classes conspired against my vox populi column. I’ll have it up by the end of the week. Enjoy!
Inside the Supreme Court this morning, one thing was clear: the City of Chicago got hosed.
A majority of the justices in today’s oral argument in Lewis v. City of Chicago seemed ready to hold in favor of a class of black applicants to the Chicago Fire Department who seek the nullify a qualification test introduced in 1996 that disparately impacted their employment opportunities under Title VII of the Civil Rights Act. After the test results came out, Chicago announced its intention to hire its firefighters from the applicants it deemed “well qualified,” or those who scored over 89% on the exam. Problem was, whites comprised the vast majority of the “well qualified” applicants. The black firefighters the city deemed “qualified,” or scoring between 65%-89% on the exam, filed their EEOC claim when Chicago made its second round of hirings solely from the “well qualified” group.
Because Chicago conceded in subsequent litigation that the test results did disparately impact the plaintiffs, the sole question before the Court today was whether the plaintiff class filed its complaint with the EEOC in a timely fashion. Chicago maintains that the sole discriminatory event took place when the city announced the test results, and that the firefighters failed to file their job discrimination claim within governing Title VII provision’s 300 day limit. The firefighters, meanwhile, contend that the 300 day limit applied to each of Chicago’s subsequent uses of the exam results.
In a surprising turn, three members of the five-justice conservative majorities in Ledbetter and Ricci–between the facts of which Lewis seems a lovechild–seemed to agree with the firefighters’ statutory interpretation. Indeed, they spent much of their time this morning making Benna Ruth Solomon, council for the City of Chicago, drink from a firehose.
Justice Alito’s questions suggested that he still felt the burn from the public’s scorn over his authoring Ledbetter in 2007, his first term on the bench. In Ledbetter, which Congress overturned by passing the Lilly Ledbetter Fair Pay Act of 2009, the Court held that a Goodyear Tires Plant worker was time-barred from suing for sex discrimination under Title VII even though the statute of limitations had run before she could have possibly known that her company had been systematically paying her less than her male colleagues.
This time, however, Alito showed no sign of Ledbetter‘s impractical formalism. Instead, he rejected Solomon’s contention that the black applicants knew they were rejected when the scores were announced, and therefore missed their shot at a remedy:
Someone getting a letter that you sent to people who were qualified didn’t know that [they were rejected]. The only thing that I see that you sent to the people who fell into the qualified category was that it was unlikely, which I take it means less than 50 percent, that they would be called for further processing, but it was possible they would be called for further processing. You didn’t tell them anything about — you didn’t tell them that you were going to fill all of your available positions with people who were classified as well-qualified in that letter, did you?
While Alito showed that he learned his Ledbetter lesson, Chief Justice Roberts sought to limit Ricci‘s backdraft. Justice Ginsburg led the charge by asking why Chicago couldn’t have just set the cutoff at 65% rather than 89%, effectively kicking down the door between the exam’s discriminatory classifications. Then Chief Justice Roberts dumped cold water all over Solomon’s hope that the Court would extend its colorblind Ricci approach to Lewis:
You’ve got to — I mean, you have just got to take your — get as good legal advice as you can, and determine is it — are we going to be in more trouble if we follow the test or more trouble if we — if we take it down?
People have to do that all the time. You know, well, if I do this, I’m going to be in trouble; if I do this, I’m going to — but I have got to decide what I should do.
Roberts implied that had Chicago only thrown out the exam, the city would be in Ricci territory, where white members of the “well qualified” group could have sued and prevailed for “reverse discrimination.” Of course, Chicago would have lost in that case, too, but at least they’d get to keep the test despite its disparate impact, as New Haven did. Instead, Chicago continued to use the exam and, in doing so, lost the Chief Justice’s sympathy.
And it was with that term, “use,” that Justice Scalia’s stopped, dropped, and rolled all over Chicago. Not one to drift into pragmatics as Alito and Roberts had, Scalia lets his textualism trump his antagonism to disparate impact laws:
How do you — the problem I have with all of this — it makes entire sense, except when you read subpart (k) [of Title VII's section 706], it says an unlawful employment practice based on disparate impact is established if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race.
Solomon did all she could to tell the justices that if they only read the provision in the context of the entire statute, they’ll see the case her way. But the justices didn’t seem to be buying it. When John Payton, the firefighters’ counsel and head of NAACP’s Legal Defense Fund, took to the lectern for his rebuttal, he concluded, with the justices’ silent assent, that the firefighters could challenge the discriminatory exam within 300 days of its every use by the City of Chicago.
This morning’s line started off slow, but by the time we got our placeholders, the line had deepened. A few pre-game thoughts before I make myself presentable for the Courtroom:
- Great regional diversity in line: DC, NYC, Chicago, Indianapolis, San Francisco, London via Detroit, and Philadelphia all represented–and that was just the among the first 15 or so.
- Got some great interviews, including the founder of the African-American Firefighters League of Chicago
- Hearing how the justices consider how to mete out “Equal Justice Under Law” in Lewis will be fascinating, given the 500-pound gorilla and pink elephant in the Court.
I will try to get my oral argument report up here this afternoon, but I have class from 1pm-5:30pm. Regardless, the argument report and the vox populi column will be up before the night is over. Thanks for reading!
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Finally, starting tomorrow night, my reports will be cross-posted at the ABA Journal website’s Supreme Court section. I give a big welcome to those future readers thumbing through F1@1F via abajournal.com.
Time to fit in a few hours of sleep. See you all tomorrow!