A Supreme Court argument about the Obama administration’s efforts to fight job discrimination showed there are two things the justices are not keen to hear: Trust the government to do the right thing, and limit judges’ ability to make sure that is the case.
Justices on both sides of the court’s ideological divide were concerned with the government’s assertion that Congress did not intend for judges to second-guess whether the Equal Employment Opportunity Commission had worked hard enough hashing things out with a company accused of discrimination before hauling it into court.
The specific case involved an Illinois mining company accused of never hiring female miners. But the justices’ concerns were broader.
“Trust you?” Chief Justice John G. Roberts Jr. pressed Assistant Attorney General Nicole A. Saharsky, representing the EEOC. “Just trust you?”
Judicial review might be limited, Roberts said. But “I am very troubled by the idea that the government can do something and we can’t even look at whether they’ve complied with the law.”
Saharsky had taken a hard line, arguing that federal law requiring the EEOC to attempt “conciliation” with an accused employer before formal charges did not anticipate federal judges reviewing what was intended to be an informal process.
“We think that this is a matter that is entrusted to the agency, that is not for court review,” Saharsky said.
But she met resistance even from some liberal justices who often agree with the administration’s goals.
“In my mind, of course, there should be judicial review,” said Justice Stephen G. Breyer. “There is of everything, just about. But the issue is how much.”
Some justices thought Saharsky had a point. The statute, Justice Elena Kagan said, gives the EEOC wide discretion. The law calls for a confidential, informal process between the agency and the employer and leaves it up to the EEOC whether the process holds promise or whether legal action is needed.
“There’s nothing to suggest that the EEOC even has to be reasonable in determining what sort of offer by the employer is acceptable,” Kagan said.
The case at the Supreme Court was not about the merits of the EEOC’s action against Mach Mining, but Justice Ruth Bader Ginsburg told the company’s lawyer Thomas C. Goldstein that the government seemed to have a good case.
“The charge here is the employer violated Title VII (of the Civil Rights Act of 1964) because he outright refused to hire women, and there is lots of evidence of that,” Ginsburg said.
“There are no women working there. They build a new facility; they don’t have a women’s bathroom in it. They hire people that are recommended to them by the current employees, and the current employees are all male and recommend all men. Now what was the EEOC to conciliate about?”
But Goldstein said courts should be allowed to make a “modest inquiry” into whether the EEOC had actually tried to work out a settlement, that the agency had made an offer and that the charges against it were clear.
Instead of wanting to settle, Goldstein said, the agency has an “enormous incentive” to “pick out the cases that it wants to be very high-profile.”
For decades, Goldstein said, the EEOC agreed there was a limited role for judicial review, and most federal courts around the country agree. In Mach’s case, the U.S. Court of Appeals for the Seventh Circuit agreed with the government that review was foreclosed.
Saharsky said the reviews have turned into “mini-trials” about whether the government had done enough in conciliation, when there are no rules about what constitutes enough.
When Justice Antonin Scalia said it was “extraordinary” that the government wanted to be exempted from litigation, Saharsky responded: “What I think is extraordinary, Justice Scalia, is reading something into a statute that doesn’t exist, which is there are no standards in the statute.”
Late in the argument, though Saharasky seemed to accept some form of judicial review. That prompted a discussion of what those standards could be.
Kagan suggested they could be as simple as the government submitting an affidavit saying, “We told them what we were objecting to, and we talked, and it didn’t work.”
Goldstein said it would have to be more than that, and some justices said the government should have to show that a specific offer was made to settle the charge.
But Justice Anthony M. Kennedy, who early in the argument objected to what he called the government’s position of “no review, period, goodbye,” said he saw the difficulty of spelling out standards.
It could become, he said, a “morass.”
The case is Mach Mining v. EEOC .