Dear Walter and Dahlia:
Walter, before I take up your invitation to talk about Caperton and other highlights and lowlights of the term, indulge me in a digression about the preposterous criticism Sonia Sotomayor has endured for getting together with her girlfriends in a group amusingly named the Belizean Grove. Get a life, people! Do I really have to explain the joke to you? Here’s the Bohemian Grove, where captains of industry wander about and bond amid the redwoods, dwelling in “camps” on fabulously valuable property in Northern California and mingling with basically every other powerful man in the country. And here’s a bunch of women who give themselves the tongue-in-cheek name of Belizean Grove (trust me, I’ve been to Belize), who own no property, who do not engage (or at least I assume they don’t) in the male BG’s truly odd ritual of peeing on the redwoods (I’m not making this up), and who enjoy one another’s company by taking occasional trips.
I take a trip to Mexico every winter with a group of female friends, and we call ourselves Las Amigas. If I decided to go for a federal judgeship, would I have to become a former amiga? How is this different from all-women book groups? I guess any woman who aspires to a judgeship had better make sure her book group is co-ed, lest she be accused of a “double standard.” And let’s not even mention the National Association of Women Judges, an estimable group of long standing, with a distinguished membership roster. I could go on, but I will restrain myself. I’m just sorry that S.S. or her advisers felt the need to dignify this nonsensical criticism by taking a defensive tone about the Belizean Grove and then “resigning.”
Now, briefly, to Caperton. This was, indeed, a very odd exercise. The case was latched onto by a whole bunch of well-meaning folks who thought they could use it as a poster child for what’s wrong with a system in which judges must run for election and raise money to do so. But its facts are so extreme that it can in no way be described as typical, and it produced an opinion so qualified and so tied to those facts, it’s impossible to state the holding accurately in a way that has any utility for the nonextreme, and hence less visible and perhaps more troubling, situations that come up when judges have to run for office or retention. The real fight in this case was evidently in conference, in a closed-door debate that went on for weeks over whether to grant it. I’m sorry that they did: The case promised more than it could possibly deliver, while doing very little to clarify a judge’s duties in ethically ambiguous situations. But the game was over with the grant of cert—once this case was run up the flagpole, it was quite foreseeable that Justice Kennedy would have to salute rather than be seen as shrugging off the behavior that went on here. Tony Mauro had an enlightening interview with Tom Phillips, the former chief justice of Texas, who suggests that very little will come of Caperton in the end.
I just want to mention two other cases. One is Gross v. FBL Financial Services, which came down last Thursday and was largely overlooked among the coverage of the DNA case Walter talked about. Why did this 5-to-4 decision (majority opinion by Justice Thomas) provoke just about the angriest dissent I’ve seen from Justice Stevens since Bush v. Gore? Because of the bait-and-switch game the majority played. The court granted on the relatively narrow question of whether a plaintiff in a “mixed motive” age discrimination case has to present “direct evidence” of age discrimination in order to shift the burden to the employer to show that the adverse action—firing, failure to promote, unwelcome transfer, etc.—would have been taken regardless of the employee’s age. (“Mixed motive” simply means that the defendant is alleged to have acted for an impermissible reason among other reasons, and since malefactors rarely declare their bad motives, many discrimination cases require peeling back the cover story to get at the truth.)
Having granted cert on this question, the majority then leapfrogged over it to rewrite the rules for litigating an age discrimination case. The court held that the burden never shifts to the employer to explain itself. Rather, the employee-plaintiff bears the burden throughout the case of showing that age was not simply one factor among others but that it was the “but-for” cause of the adverse employment action. The court took this big step without notice to the parties that it was even under consideration. Once it decided to go that route, the court should have invited supplemental briefing or—as would have happened in earlier years—scheduled a reargument so that all parties could have addressed the implications of a potential ruling that will, predictably, make it much harder for victims of age discrimination to survive summary judgment, let alone prevail on the merits. This was a nasty/lazy/shoddy way to proceed. Justice Stevens said it better: “[a]n unabashed display of judicial lawmaking.”
Another case that has not received sufficient scrutiny is Ashcroft v. Iqbal, decided May 18. In this 5-to-4 decision (majority opinion by Kennedy), the court dismissed a suit against the former attorney general by one of the hundreds of Muslim men who were rounded up after 9/11 and jailed under harsh conditions in the federal prison in Manhattan. The question concerned the pleading requirements for such a suit—had the plaintiff, Iqbal, presented enough of a case to be able to get discovery. In holding that he had not, the majority relied on an antitrust case from 2007, Bell Atlantic v. Twombly, which raised the pleading bar in antitrust cases by requiring plaintiffs to show at the outset that their theory of the case was not only conceivable and nonconclusory but also “plausible.” Justice Kennedy declared that the Twombly case was not limited to the antitrust area but “expounded the pleading standard for all civil actions.” Not so fast, said Twombly’s author, Justice Souter, in dissent. He said his point in Twombly was to enable a court to dismiss a case at the pleading stage when the plaintiff’s theory (of Sherman Act violations) was consistent with lawful conduct as well as with illegality, taking the allegations as factually correct. In the Iqbal case, Justice Souter said, Iqbal’s allegations, if true, showed only illegality, and he was therefore entitled to move on to discovery; this was not a Twombly case. Ah, but by a 5-4 vote, it became a Twombly case, and all civil litigation now has to meet a higher pleading standard than Twombly’s author himself intended. Another bait-and-switch. Nice.
I hope I haven’t run on too long here. These cases aren’t the most thrilling, perhaps, but they are where the rubber met the road this term, and they have implications—unlike Caperton—beyond their facts. By the way, it appears that tomorrow won’t be the final day of the term—we can keep enjoying our breakfast until next Monday, and I look forward to it.