Justices Further Resist Finding Right to Sue

By Robert Barnes
Washington Post Staff Writer
Sunday, February 24, 2008

There was a time when Supreme Court justices peered into federal statutes outlawing discrimination and found between the lines the right of the aggrieved to take his complaint to court. What good was the law, they reasoned, without a means to enforce it?

Those, Justice Antonin Scalia said last week, were "the bad old days."

The increasingly conservative court has said often of late that it is getting out of the business of finding a right to sue that is not explicitly stated in the law -- what lawyers call an "implied cause of action."

Two discrimination cases that the court heard last week, both concerning retaliation, made plain that a sizable number of justices are deeply resistant to finding such rights and to expanding those it previously recognized.

Both plaintiffs based their cases on Supreme Court precedents, one as recent as 2005, but each encountered stiff opposition from justices who maintained that they should not provide a protection not specifically in the text of the laws.

A postal worker argued in Gomez-Perez v. Potter that the Age Discrimination in Employment Act protects federal workers from the kind of reprisals she allegedly received after she filed a complaint of age discrimination. And a black associate manager of a Cracker Barrel restaurant claimed in CBOCS West v. Humphries that a federal law derived from the Civil Rights Act of 1866 protected him from firing after he complained of racial discrimination.

Interest groups and plaintiffs' lawyers worried about the latter case, which lacked the disagreement between lower courts that often plays a part in Supreme Court cases. They fretted that the court's changing majority took it to restrict the right to sue, rather than to expand it.

"Nothing that happened at the oral argument caused that concern to go away,'' said Jocelyn Frye, general counsel for the National Partnership for Women and Families.

Cynthia Hyndman, a Chicago lawyer who represented Hedrick Humphries, told the justices that the federal law to protect African Americans that her client relied upon would be meaningless if an employer was free to fire someone for complaining about discrimination.

Scalia, as he has held since becoming a justice, responded that it is not the job of the court to provide relief.

"I agree with you entirely that it would make sense to provide a cause of action for retaliation, but we don't write statutes," Scalia said. "We read them. And there's nothing in this statute that says that."

Chief Justice John G. Roberts Jr. wondered whether the court's respect for stare decisis should extend to cases it believes were wrongly decided, and Justice Anthony M. Kennedy said he could not find a way to read the law that gave plaintiffs the right they wanted.

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