Scalia offers help to attorney during CBOCS argument

While trying to guess which way a Supreme Court justice is leaning based on his or her comments during oral argument is never an exact science, DC Dicta will go out on a limb and say Justice Antonin Scalia is probably not in favor of granting employees the right to bring retaliation claims under 42 U.S.C. §1981.

In today’s oral arguments in CBOCS v. Humphries, No. 06-1431 (asking whether an African American restaurant assistant manager who claims he was fired after complaining about racially charged comments made by his manager can sue for retaliation under §1981) Scalia seemed to make his feelings clear.

At several points Scalia even told the attorney representing the employer to make better arguments for his case.

When attorney Michael W. Hawkins ran into trouble explaining to Justice Stephen Breyer why, if the Court has implied rights of actions under other statutes, it shouldn’t do so in this case, Scalia came to Hawkins’ rescue.

“Mr. Hawkins, don’t we have a whole line of recent cases which say we have set our face against implying causes of action?” Scalia asked.

“Yes,” Hawkins said.

“A whole bunch of recent cases saying we’re not going to do that any more?” Scalia continued.

“Yes, Your Honor.”

“We used to do it, but we said we’re not going to do it any more?” Scalia went on.

“That’s correct, Your Honor.”

“So why don’t you invoke those?!” Scalia shot.

[More after the jump]

Later, Hawkins seemed to lose track again during questioning by Justice Ruth Bader Ginsburg, who asked if Congress’ amendments to the statute in 1991 to include coverage for enjoying all benefits of a contractual agreement revealed an intent to cover claims like retaliation after a previous decision by the Court limiting §1981’s scope.

“[Didn’t] Congress change the law [to say] this Court has been too stingy in its interpretation of §1981?” Ginsburg asked.

“Correct,” Hawkins said.

That caused a seemingly agitated Scalia to speak up again, this time raising his voice.

“Why do you agree with that?!” Scalia asked Hawkins. “I don’t understand why you agree with that!”

“Well, I think that there was some perspective,” Hawkins tried to explain. “I don’t personally agree with it.”

“Then don’t say ‘yes!'” Scalia said. “I mean, it may well be that Congress thought our interpretation of 1981 was perfectly reasonable, or it had no idea what our interpretation of 1981 was. But they know what they wanted to do in 1991. Okay?”

“I agree, Justice Scalia,” Hawkins replied

“That’s all we know for sure,” Scalia continued.


“Congress [wasn’t] necessarily disapproving our prior decision,” Scalia went on. “Is there anything in the statute which said the Supreme Court made a bad decision, and we’re going to fix it?”

“No,” Hawkins said. “There’s nothing in that at all.”


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