January 2012

Once again ruling against America’s employers, the Supreme Court Monday broadened the reach of the 1964 Civil Rights Act’s ban on retaliation. It overturned a federal appeals court ruling against a worker who claimed he suffered unlawful retaliation for complaining about discrimination, when a business allegedly fired his fiancée.

As Ed Whelan notes, the Supreme Court’s unanimous decision in Thompson v. North American Stainless abrogated “all four” of the federal appeals court rulings on the subject, all of which had ruled in favor of the employer in similar cases. Indeed, the Supreme Court took a more expansive view of workers’ ability to sue businesses than 18 “of the 25 appellate judges to address the issue,” including even “Carter and Clinton appointees” like Judge Diana Murphy, who “decided it in favor of the employer.”

This is part of a long line of rulings against employers by the Supreme Court, which is not pro-business at all, contrary to the false claims of many liberal reporters who cover the Supreme Court. Many of these rulings against employers, like Lewis v. Chicago (2010), have been unanimous reversals of lower court decisions.

Slate’s Dahlia Lithwick falsely claimed in 2009 that in the Supreme Court, “big business always prevails, environmentalists are always buried, female and elderly workers go unprotected, death row inmates get the needle, and criminal defendants are shown the door.”

That false claim contradicts reality. Over the last dozen years, the death penalty has been dramatically cut back in cases like Roper v. Simmons (2005), as the Supreme Court has invalidated the death penalty when imposed on the “retarded” (even the mildly retarded) or juveniles (even 16 to 18 year-olds), or when imposed by judges rather than juries (as state laws long provided).

The Supreme Court tossed out thousands of sentences given to criminal defendants through decisions like U.S. v. Booker (2005) and Blakely v. Washington, based not on defendants’ innocence, but rather on the mere fact that judges, rather than juries, had made findings related to their sentences. The supposedly “right-wing” justices Roberts, Scalia, and Thomas joined in these decisions.

Environmentalists have won many cases, including one of the most economically-significant decisions ever — Massachusetts v. EPA (2007) — which arguably opened the door to EPA regulation of virtually every human activity, on the grounds that virtually all activity (from industrial production to farming to cars) emits carbon dioxide. That decision also created a special rule of standing to allow state attorneys general to bring lawsuits that would otherwise be thrown out as meritless for lack of standing.

The Supreme Court allowed businesses to be sued even for products the FDA deems to be safe and effective, in Wyeth v. Levine (2009), in a ruling that legal commentator Ted Frank called the most anti-business decision in 43 years.

The Supreme Court has repeatedly broadened employers’ liability for discrimination against women. It continuously expanded the definition of sexual harassment: it overturned earlier limits on vicarious liability (in Faragher v. Boca Raton (1998)), allowed institutions to be sued based on the acts of non-employees (in Davis v. Monroe County (1999)), and rejected limits on lawsuits where there is no economic or psychological harm (Harris v. Forklift Systems (1993)). All these rulings overturned lower court judgments against plaintiffs. The Supreme Court also made it easier for older workers to sue over unintentional discrimination, even after settling with their employer.

Thus, Dahlia Lithwick’s depiction of the Supreme Court bore no relation to reality. But similarly false depictions are peddled by court reporters at publications like the New York Times, the Washington Post, and the Los Angeles Times, fostering a misleading image of the Supreme Court.