THE HIGH COURT

Every word hanging in the balance

Samuel Alito
Samuel Alito
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Robert Barnes
Monday, October 18, 2010

The password at the Supreme Court on Wednesday was "file."

The day before, it was "unavoidable."

And in another case, the justices spent considerable time pondering the meaning of the phrase "necessarily implies." That one is particularly problematic, Chief Justice John G. Roberts Jr. noted.

"I mean, the adverb points one way and the verb points the other," he said.

Supreme Court justices receive the most attention when they divine the Constitution to determine how it protects personal privacy or restricts the government from infringing gun rights.

But their work more often is deciphering the muddy language of legislative compromise or even the ambiguous words of their predecessors on the bench.

Three cases the court heard last week all hinged on the definitions of a handful of words. And there is nothing trivial about the task.

The decision on "unavoidable" in Bruesewitz v. Wyeth could determine whether parents have the right to sue over defectively designed vaccines they allege devastated their children's health. The meaning of "necessarily implies" in Skinner v. Switzer could be key to whether a man on death row gains access to DNA evidence he says could prove him innocent.

And Kevin Kasten might be able to sue his former employer if the court decides that he "filed" an official complaint the day he told a supervisor that the placement of time clocks was illegal and part of an effort to cheat workers out of overtime pay. Saint-Gobain Performance Plastics fired him the day they moved the clocks and settled a complaint with others for $1.5 million.

But courts have said Kasten can't sue for retaliation because the Fair Labor Standards Act requires his complaint to be written, not verbal.

His attorney, James Kaster, told the justices the oral warning fulfilled the statute's language of protecting workers who "file any complaint."

Doesn't filing a complaint usually mean it is written? asked Justice Samuel A. Alito Jr.


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