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.

But other justices said such comments could not be reconciled with the Supreme Court's history, both distant and more recent.

In 1969, it found in Sullivan v. Little Hunting Park that retaliation was covered by another federal law derived from the 1866 act, even though the word itself was not specifically mentioned. Neither is the right to sue, Justice Stephen G. Breyer noted last week, but the court recognized that it was necessary "to make the statute effective."

Added Justice Ruth Bader Ginsburg: "Wouldn't it be odd to take these twin measures" -- the one decided in Sullivan and the other relied upon by Humphries -- "and say one includes retaliation and the other doesn't?"

Less than three years ago, the court voted 5 to 4 to find that Title IX protected a basketball coach who complained about sex discrimination, even though reprisals are not mentioned in the act.

"Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination," wrote Justice Sandra Day O'Connor in her last full term on the court.

That decision was rooted in the Sullivan opinion, which was decided in what Scalia called the "bad old days" when the court was "inferring causes of action all over the place."

Roberts picked up the thread in questioning how the court should honor stare decisis, the idea that the stability of the law depends on the court upholding its precedents.

" Sullivan would not have come out the same way today," Roberts said during arguments in the Humphries case. "So if you're concerned about stare decisis which body of law do you give effect to, the Sullivan case or our more recent cases on how to read statutes?"

Solicitor General Paul D. Clement, who represented the Bush administration supporting Humphries, told the justices that they have already settled that there is an implied cause of action. "We are simply asking you to interpret the scope" of what has already been granted, he said.

Justice Samuel A. Alito Jr., who replaced O'Connor on the court, asked questions that did not indicate how he will decide the case.

Eric S. Dreiband, a Washington lawyer and former general counsel to the Equal Employment Opportunity Commission nominated by President Bush, said he believes the court's precedents "almost compelled a result in favor of Humphries."

A decision otherwise, he said, would mark another significant shift in the court's jurisprudence.

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