Convictions: Slate's blog on legal issues

Recusal Quiz Answered

Can't let the month of May end without answering the Recusal Quiz question. As readers will recall, the quiz was occasioned by Linda Greenhouse's report that the Supreme Court had affirmed a lower court decision. The reason? Four justices recused themselves on account of "[f]inancial and personal conflicts of interest" in the case, in which victims of the apartheid era seek damages from myriad corporations that did business in South Africa during that time. Over at Opinio Juris, Roger Alford wondered whether "anything like this" had occurred "in such an important case." Convictions' Recusal Quiz posed that question more pointedly:

In what case decided 60 years ago this month did three justices recuse themselves because they had a financial stake in the outcome of the issue at bar?

The answer:

Shelley v. Kraemer, decided May 3, 1948, in which the court held that a state judge violated the Equal Protection Clause of the 14^th Amendment by enforcing a deed covenant that forbade the transfer of property to African-American buyers.

The vote in Shelley was 6-0. The reason? Justices Robert H. Jackson, Stanley Reed, and Wiley B. Rutledge recused themselves; each owned property subject to racially restrictive covenants. Had one more justice been in the same situation, the court would have lacked a quorum in Shelley. Instead of a unanimous vote against, the result would have been a vote in favor of racially restrictive covenants—and that result would have obtained until either the composition of the court or the property holdings of its members changed. 

Upholding the Freedmen's Remedy

The Supreme Court today held 7-2 that a black former employee of Cracker Barrel can go ahead and sue the company for retaliation, based on his allegations that it fired him for complaining about racial discrimination. A few months ago, I thought that the case might come out the other way and serve as a vehicle for the court's conservatives to rein in employment-discrimination law. Instead, Justice Stephen Breyer's opinion—joined by all the justices but Antonin Scalia and Clarence Thomas—relies on the principle of stare decisis, or respect for past precedent, to allow employees to sue for retaliation based on an 1861 law that doesn't mention retaliation explicitly. The key precedents are a 1969 holding from the Warren Court striking down a restrictive housing covenant and a 5-4 ruling about retaliation claims brought via Title IX (the law that prohibits gender discrimination in school sports) written by Sandra Day O'Connor in 2005. Breyer carefully lays them out and then writes that considerations of stare decisis "impose a considerable burden upon those who would seek a different interpretation that would necessarily unsettle many court precedents." A page later, he acknowledges that the statute nowhere mentions retaliation (nor did Congress add it in amending the law in 1991). But, Breyer writes, "that fact alone is not sufficent to carry the day."

Thomas and Scalia disagree. Kennedy, Alito, and Roberts, however, stand with Breyer in upholding the Warren Court decision and the O'Connor majority opinon instead of going with the plain text reading. There are good reasons for the majority's position aside from stare decisis: As Breyer points out, when Congress re-enacted the law in 1991, lawmakers thought they were expanding the statute's original scope. But the main point is that it will be worth watching if and how today's division over how to read a statute plays out among the conservatives. Also, today's opinion is more fodder for Linda Greenhouse's observation about the decline of the 5-4 split, at least so far this year.

Linda Greenhouse to Yale

When Linda Greenhouse recently announced that she was leaving the New York Times, it was a sad day for Supreme Court coverage. Now there's good Greenhouse news--and a coup for Yale Law School. Greenhouse will be the law school's Distinguished Journalist-in-Residence starting in January 2009, a new position created for her, to support her research as well as participate in law school doings. Court observers will still miss her on the front pages, but they'll get her sharp eye and analysis in other forms. I can't think of a downside.