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supreme court dispatches: Oral argument from the court.

Grumpy Young MenThe Supreme Court squints at America's elderly federal employees.

By Dahlia Lithwick
Posted Tuesday, Feb. 19, 2008, at 6:12 PM ET
The U.S. Supreme Court. Click image to expand.

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.

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.

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.

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Dahlia Lithwick is a Slate senior editor.
Photograph of the U.S. Supreme Court by Paul J. Richards/AFP/Getty Images.
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Remarks from the Fray:

Let me get this straight -- Lithwick is blaming the "conservative bloc" on the Court for not reading a retaliation provision into a law that Congress, the group that actually wrote the law in the first place, neglected to include? That gets it bass-ackwards. It's not the Court's job to do Congress' job for it. Frankly, wouldn't it have been cheaper and easier to lobby Congress to fix this provision and make it retroactive? Instead, we're treated to nonsense legal arguments such as the declaration that retaliation itself is a form of discrimination.

Just because something is before the Court does not mean that the Court is responsible for it getting there, or is able to fix it. Lithwick mentions in passing that the retaliation provision mysteriously didn't make it into ADEA, but doesn't bother to examine any further. That is simply bad reporting. Either Congress did not want the provision included, in which case the "conservative bloc" is right to not read one in, or Congress messed up, in which the "conservative bloc" is right to remind Congress that it messed up so that Congress can go back and fix it. All the way along, Congress is the one that slammed the door shut on ADEA retaliation lawsuits. Somehow, though, the Court is made the scapegoat for simply acknowledging that fact.

--Sycamancy

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