Supreme Court Update #1

I regularly monitor the Supreme Court’s website and skim their opinions. I decided to post on these occasionally.

First, a general observation: I have liked what I have been seeing over the last several months. The Court has been issuing generally conservative opinions. Alito has written several of these; in most of these opinions, Alito, Roberts, Scalia, and Thomas; wherever they win, Kennedy is usually with them as well.

To determine the future direction of the Court, one must pay particular attention to where and why Alito and Roberts dissent from the majority, and where and why they dissent from their fellow justices. In Burlington v. White, handed down yesterday, Justice Alito issued a concurring opinion in which he argued for a more narrow interpretation of “discrimination” than the majority favored.

The majority favored the definition “to treat differently,” which if broadly applied makes the government a thought police. However, Alito noted that even treating someone in a slightly less friendly manner might be viewed as discrimination under this statement, and preferred a definition which appears to be appropriate within the context of the law:

The other plausible interpretation, and the one I favor, reads ???703(a) and 704(a) together. Under this reading,???discriminat[ion]??? under ??704(a) means the discriminatory acts reached by ??703(a)???chiefly, discrimination ???with respect to . . . compensation, terms, conditions, or privileges of employment.??? This is not, admittedly, the most straightforward reading of the bare language of ??704(a), but it is a reasonable reading that harmonizes ???703(a) and 704(a). It also provides an objective standard that permits insignificant claims to be weeded out at the summary judgment stage, while providing ample protection for employees who are subjected to real retaliation.

The majority opinion was written by Breyer and was joined in by all the justices except Alito, who filed this concurring opinion.

In another opinion handed down yesterday, Dixon v. United States, Justice Alito issued a concurring opinion which Justice Scalia joined (in and of itself a good thing). The thrust of his argument was that we cannot assume that Congress shifted the allocation of the burden of proof for the defense of duress unless Congress said it did so.

His closing paragraph demonstrates a clear understanding of the separation of powers:

I would also not assume, as JUSTICE BREYER does, see post, at 2???3, that Congress has implicitly delegated to the federal courts the task of deciding in the manner of a common-law court where the burden of persuasion should be allocated. The allocation of this burden is a debatable policy question with an important empirical component. In the absence of specific direction from Congress, cf. Fed. Rule Evid. 501, I would not assume that Congress has conferred this authority on the Judiciary.

All in all, I like the preliminary signs I’m seeing from the new justices (especially Alito). We’ll just have to sit back and wait to see if things keep going in the right direction.

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