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Justices Show Ability To Move to the Center

By Robert Barnes
Washington Post Staff Writer
Thursday, May 29, 2008

The Supreme Court this week made big news because it hardly changed the law at all.

What was deemed noteworthy were lopsided majorities that spanned the ideological spectrum. What intrigued legal scholars was the justices' adherence to the court's precedents.

In other words, it was the unremarkable that seemed remarkable.

The court broke no new ground in deciding that workers are protected from retaliation for complaining about discrimination, just as they are protected from discrimination itself. At the same time, the justices expanded the right to sue and made clear that the protections extend to federal employees as well as to the private workforce.

But what was surprising was that the court had appeared likely to do just the opposite. The only reason for the court to take up the case of an African American man who had won the right to sue his former employer for retaliation, legal experts said, was to reverse.

Instead, six other justices joined Stephen G. Breyer's opinion that stare decisis, the court's doctrine of abiding by its precedents, must be respected. Among the court's majority was the newest justice, Samuel A. Alito Jr., and Chief Justice John G. Roberts Jr., who had openly questioned during oral arguments the wisdom of abiding by a 1969 decision that he said he felt certain the current court would decide differently.

The only justices dissenting from the opinion were Clarence Thomas and Antonin Scalia, who have made clear that they see no reason to respect decisions they believe were wrongly decided in the first place.

"The court today retreats behind the figleaf of ersatz stare decisis," Thomas wrote.

Tuesday's 7 to 2 decision in CROCS West v. Humphries, the case involving the African American worker, and 6 to 3 ruling in Gomez-Perez v. Potter, which involved a postal worker who claimed retaliation because of her age-discrimination complaint, are the latest pieces of the puzzle for those trying to assemble a picture of the Roberts court.

The current term has been largely free of the fractious, ideology-driven 5 to 4 decisions that marked last term. Breyer ended the term accusing his colleagues of ignoring precedent or rushing to overturn it, resulting in changes to the court's jurisprudence on abortion restrictions and school desegregation strategies, among other issues.

His parting shot served as the liberal lament about the new court: "It's not often in law that so few have changed so much so quickly."

But this year, Breyer and Justice John Paul Stevens have moved toward the center at times to form majorities of six justices or more. Roberts and Alito have done the same, and yesterday's endorsement of stare decisis-- Alito wrote one of the opinions -- seemed notable.

"Whereas Chief Justice Roberts and Justice Alito no doubt disagreed with the precedent upon which the Humphries decision relied, they went along with Justice Breyer's reasoning that such disagreement over statutory interpretation does not justify overturning precedent," said Ilya Shapiro, a Supreme Court scholar at the libertarian Cato Institute.

"Justices Scalia and Thomas, on the other hand, consider that the risk to legal stability from overturning precedent to be less than the harm from perpetuating the earlier error."

Shapiro and others said Roberts and Alito are likely to be more accommodating of the court's precedents when they pertain to statutory interpretation rather than constitutional rights.

Still, civil rights groups and experts on employment law were surprised at Tuesday's decisions, as were the business groups that had urged the court to rule differently.

They seemed in direct contrast to the court's decision a year ago, also in a decision written by Alito, to deny former Goodyear Tire and Rubber supervisor Lilly Ledbetter the award she received after suing her former employer for sex discrimination. The 5 to 4 decision was a strict reading of the federal law that said Ledbetter's claim had been filed too late, even though the Equal Employment Opportunity Commission had interpreted the law in her favor.

Tuesday's decision was an expansive recognition of past court decisions that said retaliation is a form of discrimination prohibited by federal laws, even when it is not explicitly mentioned in the statutes.

Paul Secunda, an employment law specialist at the University of Mississippi law school, said it is possible to distinguish the Ledbetter decision from Tuesday's twin rulings but acknowledged he was nonetheless surprised by the court's action.

Secunda said Supreme Court decisions are ones of "compromise and temporary alliances," that make the job of predicting the court difficult.

Robin S. Conrad, who heads the U.S. Chamber of Commerce's legal arm, noted the difference in this year's decisions and said it is an indication that "maybe there's some horse trading there."

But at this point, it would seem foolhardy to characterize the term. There are about four weeks of work ahead, and controversial decisions involving the District of Columbia's gun law, expansion of the death penalty and the rights of enemy combatants await.

Compromise and temporary alliances will be tested.

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