"I'm not for women, frankly, in any job. I don't want any of them around. Thank God we don't have any in the Cabinet."
From a videotape of Osama Bin Laden? Nope. That one comes direct from the surround-sound Dolby surveillance system of one Richard M. Nixon. While it's astonishing that a man who had encountered and ostensibly loved at least one member of each of the ovarian groups (i.e., mother, wife, daughter) could loathe women so much, according to The Rehnquist Choice, the new book by former White House counsel John Dean, Nixon personally believed women should never be on the Supreme Court, although he did consider appointing one "to make a little political hay." As he told his Attorney General John Mitchell, "I don't think a woman should be in any government job whatever. I mean, I really don't. The reason why I do is mainly because they are erratic. And emotional."
You know, when I first read that ... I cried. Couldn't write for days.
Dean's book reveals a lot more than just the vastness of Nixon's loathing for women. It also offers a firsthand description of the memo written in 1969 by then-Assistant Attorney General William Rehnquist, who was helping Nixon vet Supreme Court candidates. Rehnquist defined the term "strict constructionist" for the president's edification:
A judge who is a "strict constructionist" in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs—the latter two groups having been the principal beneficiaries of the Supreme Court's "broad constructionist" reading of the Constitution.
In other words, concludes Dean, to Rehnquist "strict constructionist" has nothing to do with adherence to the intent of the framers when interpreting the constitution. It just means screwing the little guy to benefit law enforcement or discriminators. Whether or not Rehnquist would have been confirmed to the high court in 1971 had this memo been given the Senate is one of Dean's questions for his readers. Whether it's been something of a manifesto for today's Rehnquist Court, I leave to you. The issue is concretized today as the court hears argument in EEOC v. Waffle House, a case that's about screwing the little guy to benefit waffles.
Poor Eric Baker got fired from a South Carolina Waffle House the day after he'd started work as a grill operator after suffering a seizure on the job. Baker (his real name) filed a charge with the Equal Employment Opportunity Commission claiming discrimination under the Americans with Disabilities Act. The EEOC filed an action against Waffle House on Baker's behalf. Sadly, when Baker had applied for his minimum-wage job, he'd signed a job application requiring him to submit any disputes or employment claims against Waffle House to binding arbitration. So, Baker has no choice but to submit his discrimination claim to arbitration (for which waffle he must foot 50 percent of the bill). The question for the high court is whether the EEOC, which had historically been granted broad powers to sue on behalf of discriminated workers, is precluded from bringing its own action against Waffle House to obtain private remedies (i.e., back pay, reinstatement, and damages) for Mr. Baker.
The district court found for Baker, and the Fourth Circuit reversed, finding that the EEOC could sue on Baker's behalf for "broad injunctive relief" for discriminating, but any individual remedies (including back pay, etc.) were precluded by Baker's arbitration action.
Whether you side with Waffle House or the EEOC (and by the way, it's OK to be against Waffle House but for waffles) turns on whether you think the EEOC exists to help the little guy get a fair shake or exists to help the little guy double-dip on recovery and do a sneaky end run around mandatory arbitration. It's almost immediately clear from oral argument which justices buy into the sneaky double-dip scenario.
Justice Scalia opens the hysteria by asking Deputy Solicitor General Paul Clement a hypothetical about whether, if an employee has already settled with his employer, the EEOC can come in and seek damages on his behalf. Justices Kennedy and O'Connor evince the same concerns—the EEOC is unfairly piling on, even in cases where the employer has already settled or arbitrated the case with the employee. The chief justice joins the regulars to observe that the EEOC didn't get in this case as a result of a "broad pattern or practice" of discrimination by Waffle House. (Do they just get into these cases to unjustly enrich grill operators?) Scalia rejects the notion that the only enforcement power available to the EEOC comes with the right to seek money damages. The chief probably speaks for all four of his cohorts in last year's landmark Circuit City case (holding that employers can require employees to arbitrate all employment claims) when he says that if the EEOC prevails today, they can "get whatever Baker couldn't get, and give it to him."
When David Gordon argues the case for Waffle House, the other half of the court piles on in dutiful turn. Justice Ginsburg queries how the EEOC can be precluded from bringing an action if they were never a party to the suit. Justice Breyer wonders how the EEOC can fulfill its obligation to serve the public interest if an employee who chooses not to sue his employer because he's "lazy, frightened, or indifferent" can preclude the EEOC from doing its job. Justice Souter tries to figure out how the EEOC can enforce a judgment if it has no access to remedies such as back pay and reinstatement. Stevens highlights that it has simply never happened that the EEOC has filed a suit in a case that has already settled—that the "double dipping" problem is purely hypothetical.
It's interesting that Waffle House is not about the generalized horribleness of mandatory arbitration. The fact is that an obscene majority of these cases are won by the employer and that poor minimum-wage workers like Eric Baker are asked to pay for the indignity of losing. The fact is that all the democratizing aspects of the legal process—discovery rules, punitive damages, the slow evolution of legally binding precedent—are sidelined for efficiency and speed.
Uncharacteristically silent today is Justice O'Connor, who will likely be the deciding vote again in this case. While she usually sides with the "strict construction" five, she has been known to saddle up and ride on occasion with the Stevens Gang, most notably in cases involving little guys who get screwed. Her oddball voting pattern—in some of the race discrimination, voting rights, and gender cases—has been attributed by more than one legal scholar to her occasional sympathy for outsiders and hard-luck defendants. Cringey though it may sound, some feminist scholars have gone further and in turn attributed this to the fact that she's a ... woman.
Nixon is spinning in his grave, I tell you.
Just a note that the voting is still open in Slate's feisty referendum for cases on which the court should be forced to grant certiorari, even if they've already denied it this term. Since last week, the court has refused to hear Microsoft's appeal, turned down a death-penalty case in which the attorney forgot to present mitigating evidence, and refused to hear a nude sunbathing case. While reader response has indeed been overwhelming, honorable mention thus far goes to a former law school classmate of mine who worked on a death-penalty case in which a stay of execution was denied this summer and the petitioner was killed by lethal injection. Regretfully, that will be a tough denial to remedy, although I pledge to do my best. Thanks also to the drunken young lawyers in Portland, Ore., and the various state and local officials who voted for the Procter & Gamble Satan-worshipper case. The polls are still open: email@example.com.