For Scalia, ‘Bad Old Days’ of Pro-Lawsuit Rulings Were From O’Connor Era
Several justices appeared reluctant to find an implied right to sue in two employment cases argued last week before the U.S. Supreme Court.
Arguments left observers wondering whether the court would retreat from prior rulings on the subject, issued in what Justice Antonin Scalia called the “bad old days,” the Washington Post reports.
A 2005 ruling, Jackson v. Birmingham Board of Education, held Title IX protected a coach who complained about discrimination from reprisals, even though the law did not mention retaliation. Justice Sandra Day O’Connor, who has since retired, wrote the majority opinion in the 5-4 case. She was replaced by Justice Samuel A. Alito Jr., whose stance was not clear based on the questions he asked last week.
Another ruling also came up for discussion, this was from 1969. The decision, Sullivan v. Little Hunting Park, held that suits for retaliation were permitted under a federal law derived from the Civil Rights Act of 1866.
Both decisions are important to the outcome of the two cases argued last week. In Gomez-Perez v. Potter, the issue is whether age discrimination laws carry an implied right of action for retaliation lawsuits. In CBOCS West v. Humphries, a fired manager at a Cracker Barrel restaurant claims he should be able to sue under section 1981 of the Civil Rights Act, a different provision than the one at issue in Sullivan.
The court has increasingly scorned the idea of finding an implied right to sue in laws that don’t mention the subject. “A sizable number of justices” continued bashing the idea in the arguments last week, the Post story says.
Justice Antonin Scalia said Sullivan was decided in “the bad old days, when we were inferring causes of action all over the place.” Legal Times (sub. req.) writes that Scalia used the phrase so often “that it seemed he was referring to a long-ago point in Supreme Court history, like the century-old Lochner Era” rather than precedent less than three years old.
Chief Justice John G. Roberts Jr. also emphasized a difference between the past and present, Legal Times says. Roberts cited a 2001 ruling by Scalia that said it was up to Congress to specify whether a law gives litigants a right to sue.
