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The Freedmen's RemedyThe big discrimination case before the Supreme Court.

By Emily Bazelon
Posted Monday, Feb. 18, 2008, at 7:01 AM ET

(Continued from page 1)

So, what's the problem? No problem, from the point of view of two of the three appeals court judges who ruled in Humphries' favor, one of whom is the esteemed and hardly liberal Richard Posner. No problem, also, for the Bush Justice Department, which is weighing in on Humphries' side and thinks that Sullivan and Jackson pretty much settle the question. But Judge Frank Easterbrook, another esteemed member of the U.S. Court of Appeals for the 7th Circuit, disagreed with his colleagues and wrote a cranky dissent in which he signals to the Supreme Court to step in. "There has been a sea change in interpretive method between Sullivan and today," Easterbrook writes. "We must respect our superiors' decision to call a halt to judicial extrapolation. … My colleagues indulge an assumption—that if some remedies are good, then more must be better—that has no support on today's Supreme Court."

And what about Jackson, decided less than three years ago? Easterbrook waves it away—Title IX is simply a different statute. Sullivan really shouldn't count, he continues, because Congress amended Section 1982 in 1991, at a time when the court was no longer taking the "freewheeling approach" to statutory interpretation that Easterbrook imputes to the 1960s. If Congress wanted Section 1982 to protect against retaliation, it should have said so. It didn't. That's that.

Here's why that is unconvincing. (Remember, the Bush administration is on the side of the African-American guy who got fired here, so he must have a pretty good claim!) When Congress amended Section 1982 in 1991, it did so in response to a 1989 Supreme Court decision that had cut off the statute at the knees, or rather at the moment when employees might actually take advantage of it. In that case, Patterson v. McLean Credit Union, the court said that Section 1982 only applied when a contract was actually being formed, during the hiring process. After that, nada. Congress got mad and restored the statute to what lawmakers believed to be its original scope, at every phase of employment. It was responding, in part, to lower courts that in the wake of Patterson had dismissed suits for retaliation. As the Bush administration brief argues, "In reality, Congress responded to Patterson in a way that makes clear that both harassment and retaliation are prohibited." That's the context that matters—not the Supreme Court's greater reluctance to read statutes broadly in 1991 vs. 1969.

Well-reasoned and explained as all of this is by Humphries' lawyers and the government, the tea leaves of disaster for this case are also here for the reading. Patterson is the case in which liberal lion Justice William Brennan lost swing-vote Superman Justice Anthony Kennedy, according to Closed Chambers, an account of that year on the court by then-clerk Edward Lazarus. Despite initial moves in the other direction, Lazarus recounts, Kennedy ended up as the fifth vote in Patterson for chopping off Section 1981. He also dissented from O'Connor's opinion in Jackson. Now, O'Connor's seat belongs to archconservative Justice Samuel Alito. And Hendrick Humphries' case seems an all-too-likely vehicle for furthering a cherished project of Alito's side of the bench: reading laws—especially civil rights laws—narrowly. Which just happens to slam the door on plaintiffs.

Unless Kennedy changes his course, which is doubtful, the court's right flank could use this case not only to block suits for retaliation like Humphries', but also to set the stage to make it ever harder to sue for discrimination under other laws. You can imagine the opinion to be written this spring, perhaps by Alito or Chief Justice John Roberts. There will be no need to get fiery—that's not these new justices' style. Instead, it can all seem unremarkable and straightforward: Congress didn't say retaliation, so Hendrick Humphries, you don't get your retaliation suit. Oh, and by the way, we look forward to citing this opinion the next time a screwed-over plaintiff comes around.

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Emily Bazelon is a Slate senior editor.
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