The Supreme Court peers nearsightedly at the elderly.

Oral argument from the court.
Feb. 19 2008 6:12 PM

Grumpy Young Men

The Supreme Court squints at America's elderly federal employees.

The U.S. Supreme Court. Click image to expand.
The U.S. Supreme Court

The U.S. Department of Justice has a credibility problem and not just the one about being a hopeless partisan shambles. This morning at the Supreme Court, the concern is that it's no longer clear how the solicitor general's office decides which side of a case it will support. Spin the bottle? Rock, paper, scissors? First, there was the brief filed in the upcoming D.C. gun ban case, which—from the perspective of the NRA, at least—crazily snatched defeat out of the jaws of a victory for America's gun-o-philes. Then there's the Magic 8-Ball stance of the solicitor general's office on retaliation claims in employment cases. In today's argument in Gomez-Perez v. Potter, the Bush administration opposes extending federal age-discrimination laws to protect federal workers from retaliation for whistle-blowing. But in tomorrow's case, the SG will advocate stretching federal race discrimination laws so a fired black employee can sue Cracker Barrel restaurants for retaliating for his whistle-blowing.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

So strange is this disjunction that Justice Samuel Alito is forced to ask Gregory Garre, who represents the SG's office today, whether it would be "unkind" to characterize the government's current position as being that "a general ban against discrimination would include retaliation, except for when it's the government being sued." The only real difference between today's argument over age discrimination and tomorrow's over race discrimination is either that age discrimination is A-OK with the Bush administration but race discrimination isn't, or that the government sides with its employees only when it's not the one who roughed them up in the first place.

Advertisement

Myrna Gomez-Perez worked for the U.S. post office in Puerto Rico. She claims she was the victim of discrimination and retaliation (under the federal-sector provision of the Age Discrimination in Employment Act) when a younger, less experienced employee was assigned to a position she wanted. The ADEA prohibits age discrimination in the private sector and explicitly bars retaliation against whistle-blowers. When Congress extended the ADEA to cover federal workers in 1974, that retaliation language didn't quite come along for the ride. The main question for the justices today is whether the statute's more general provision—that workers 40 (because 40 is the new 80?) and older "shall be made free from any discrimination based on age"—implicitly includes a bar on retaliation. Given that the current high court has never met a plaintiff it can't kick to the curb, you can pretty much guess where this is headed already.

Joseph R. Guerra represents Gomez-Perez this morning, and he immediately gets on the wrong side of Justice Antonin Scalia when he asserts that the "plain language" of the AEDA bars retaliation. Scalia is bucking for a fight after time off to extol the virtues of face-slapping. "I can see your argument that it ought to be covered, but the plain language doesn't cover it. That's extraordinary!" Scalia accuses. Guerra is more or less forced to concede that when he says plain language, he means plain invisible implied language. Which perhaps isn't so plain, at least as language goes.

Guerra rests much of his argument on Jackson v. Birmingham Board of Education, a 2005 case—oh, such a short time ago!—in which the Supreme Court read an implicit retaliation ban into Title IX's prohibition on sex discrimination. Justice Sandra Day O'Connor, writing for a 5-4 court, said then that "retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination." Title VII—the race discrimination law—is enforced the same way, Guerra urges. But the argument about Title VII makes Scalia irate: "Where is the text you're talking about?" he asks. "It's not in your briefs. … It's not in the appendix! So I don't know what you're talking about." Guerra apologizes. Scalia then swings his chair around in a gesture worthy of a jilted 1920s screen siren and glares at the ceiling. You can practically hear him snarfing  the footnotes out his nose.

Justice Stephen Breyer attempts to diffuse some of the hostility by joking, "I'm not certain what I'm talking about, either." But Scalia almost immediately stops giving Guerra the silent treatment so he can accuse him of "begging the question." And Guerra is again apologizing, this time for being unclear.

When it's the government's turn, Gregory Garre spends a good chunk of his 30 minutes being pummeled by a sweet little old lady. In Jackson, the Bush administration sided with the fired basketball coach who was suing for retaliation. Why won't the SG's office give the AEDA the same interpretation it accorded Title IX then, asks Ruth Bader Ginsburg. Why don't retaliation claims go "hand in hand with discrimination claims?" If Gomez-Perez can't get into court on her retaliation claim, what remedy does she have? It's in the midst of all this that Alito mocks the SG's office for opposing the victims of ageism while supporting the victims of racism.

In his rebuttal, Guerra again sets off the tinderbox that is Antonin Scalia. When he begins to discuss Title VII again, Scalia scolds him for "not giving us the statutes to look at." Guerra apologizes once more.

It's probably not an accident that the same Supreme Court that has no real regard for precedent—or, at least, precedent as penned by Sandra Day O'Connor—should have little regard for the employment woes of the elderly. That sound you're hearing today isn't just the courthouse door closing on thousands more Americans and their lawsuits. It's also the sound of a very energized conservative bloc on the high court that seems to grow younger every day.

TODAY IN SLATE

Politics

Talking White

Black people’s disdain for “proper English” and academic achievement is a myth.

Hong Kong’s Protesters Are Ridiculously Polite. That’s What Scares Beijing So Much.

The One Fact About Ebola That Should Calm You: It Spreads Slowly

Operation Backbone

How White Boy Rick, a legendary Detroit cocaine dealer, helped the FBI uncover brazen police corruption.

A Jaw-Dropping Political Ad Aimed at Young Women, Apparently

The XX Factor
Oct. 1 2014 4:05 PM Today in GOP Outreach to Women: You Broads Like Wedding Dresses, Right?
Music

How Even an Old Hipster Can Age Gracefully

On their new albums, Leonard Cohen, Robert Plant, and Loudon Wainwright III show three ways.

How Tattoo Parlors Became the Barber Shops of Hipster Neighborhoods

This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century

Moneybox
Oct. 1 2014 8:34 AM This Gargantuan Wind Farm in Wyoming Would Be the Hoover Dam of the 21st Century To undertake a massively ambitious energy project, you don’t need the government anymore.
  News & Politics
The World
Oct. 1 2014 12:20 PM Don’t Expect Hong Kong’s Protests to Spread to the Mainland
  Business
Moneybox
Oct. 1 2014 2:16 PM Wall Street Tackles Chat Services, Shies Away From Diversity Issues 
  Life
Outward
Oct. 1 2014 6:02 PM Facebook Relaxes Its “Real Name” Policy; Drag Queens Celebrate
  Double X
The XX Factor
Oct. 1 2014 5:11 PM Celebrity Feminist Identification Has Reached Peak Meaninglessness
  Slate Plus
Behind the Scenes
Oct. 1 2014 3:24 PM Revelry (and Business) at Mohonk Photos and highlights from Slate’s annual retreat.
  Arts
Brow Beat
Oct. 1 2014 9:39 PM Tom Cruise Dies Over and Over Again in This Edge of Tomorrow Supercut
  Technology
Future Tense
Oct. 1 2014 6:59 PM EU’s Next Digital Commissioner Thinks Keeping Nude Celeb Photos in the Cloud Is “Stupid”
  Health & Science
Science
Oct. 1 2014 4:03 PM Does the Earth Really Have a “Hum”? Yes, but probably not the one you’re thinking.
  Sports
Sports Nut
Oct. 1 2014 5:19 PM Bunt-a-Palooza! How bad was the Kansas City Royals’ bunt-all-the-time strategy in the American League wild-card game?