Ginsburg

  • June 28, 2013
    Humor

    by John Schachter

    Article III of the U.S. Constitution plainly states that members of the Supreme Court “shall hold their Offices during good Behaviour.” For so-called textualists or strict constructionists who believe in using the actual words of the Constitution to interpret its meaning the time has come to kick Justice Samuel Alito off the bench.

    I have a nearly 14-year-old son – also named Samuel, by the way. Ever since he was toddler, we have told him to show respect for his peers, teammates, friends and teachers, for young and old alike. (Even for his parents, hard as that message is to sell.) When he scoffs at others’ opinions, interrupts those sharing their thoughts or – most annoying of all – rolls his eyes when someone is speaking, we reprimand him for his “bad behavior.”

    Justice Alito apparently never learned this lesson. As a result his behavior on the Court (and sometimes outside it) is anything but exemplary. It seems that it’s not just his opinions and votes that are offensive, but that his treatment of colleagues and other esteemed leaders is equally odious.

    The Washington Post’s Dana Milbank chronicled Alito’s rude treatment of Justice Ruth Bader Ginsburg during the Court’s closing sessions, as he “visibly mocked” her during her reading of a dissent to one of his right-wing opinions. His eye-rolling also caught the attention of The Atlantic’s Garrett Epps, who called the behavior a “mini-tantrum” that “brought gasps from more than one person in the audience.”

    Milbank reported that Alito’s insolence extends beyond his ocular offenses aimed at Ginsburg. Days before as both Justices Elena Kagan and Sonia Sotomayor read from opinions in other cases Alito “demonstrated his disdain” for his colleagues by glowering, shaking his head and (it must be his signature move) rolling his eyes.

    Of course, all of this bad behavior comes on the heels of Alito silently yet snippily scolding President Obama during the 2010 State of the Union address when the president had the audacity to criticize the Court’s decision in Citizens United.

    When it comes to bad behavior, it doesn’t take an experienced jurist or constitutional scholar to “know it when [we] see it.” (It’s a lot easier to define than pornography.) So for those who believe in the words and text of the Constitution, let’s hear your call for Alito’s removal – or let’s hear your contorted reasoning why not.

    But you better not simply roll your eyes.

  • June 28, 2013
    Guest Post

    by Emily J. Martin,  Vice President and General Counsel at the National Women's Law Center

    You may have missed it in the flurry of newsmaking by the Supreme Court this week, but on Monday, five of the Justices gave early Christmas presents to defendants accused of employment discrimination, when the Court handed down important decisions in two Title VII cases: Vance v. Ball State University and University of Texas Southwestern Medical Center v. Nassar.  In both Vance and Nassar, the 5-4 decisions ignored the realities of the workplace and the ways in which employment discrimination and harassment play out every day.  Placing new obstacles in the path of workers seeking to vindicate their rights, the Court set aside the longstanding interpretations of the Equal Employment Opportunity Commission (the agency charged with enforcing Title VII), and closed out a term in which the Court repeatedly limited the ability of individuals to challenge the actions of powerful corporations.

    Justice Samuel Alito wrote the Vance decision.  Prior cases have held that when a plaintiff shows she was sexually harassed, or racially harassed, or harassed on some other unlawful basis by a supervisor, her employer is liable, unless the employer can prove that the plaintiff unreasonably failed to take advantage of a process that the employer provided for addressing harassment. An employer is only liable for harassment by a co-worker, however, when a plaintiff can show that the employer was negligent in controlling working conditions—a far tougher standard.  Vance posed the question of who is a supervisor: Is it only someone who has the authority to hire, fire, or take other tangible employment actions? Or is it anyone who oversees and directs the plaintiff’s work on a day-to-day basis? Ignoring the ways in which day-to-day supervisors have been invested with authority over other employees that empowers them to harass, the Court ruled on Monday that employers are not vicariously liable for harassment by day-to-day supervisors who do not have the authority to hire, fire, and the like. Indeed, showing even more solicitousness for the interests of employers than the defendant in the case had shown for itself, the majority adopted an even narrower interpretation of the word “supervisor” than had been urged by Ball State.