Argument recap: Salvaging a lost cause?
on Nov 26, 2012 at 5:06 pm
Analysis
Often, the Supreme Court takes the advice of the U.S. Solicitor General when, seeking to preserve the Court’s energies and its authority, the SG urges the Court to pass up this case or that. Now and then, though, the Justices don’t heed that advice. It turned out Monday that they perhaps should have, in an otherwise important case on employment rights: Vance v. Ball State University (docket 11-556). For an hour, three lawyers and some of the Justices labored to try to salvage that case, but there was at least a good chance that the effort would fail.
These days, the Court grants review of so few cases that it is hard to let one go, partly because that is a bit embarrassing. But, if a case turns out to have less than had met the Court’s granting eye, the case may just have to be turned aside. Otherwise, what might result is a ruling that sounds like merely an advisory opinion — something the Court is not supposed to issue.
When lawyers for a kitchen employee at Ball State University in Muncie, Indiana, asked the Court to hear her claim that a supervisor had picked on her because she was the only black person on the staff, the university urged the Court not to grant review, saying that Maetta Vance could not show that there was any wrongdoing by any supervisor, using any legal definition of that word. The Court, though, asked the Solicitor General for advice and, for largely the same reason, the answer came back that review should be denied. Still, the Court went ahead, giving the case the full treatment, no doubt because the lower courts are split on how to define a supervisor under the job bias law, Title VII, a key issue in its enforcement.
Vance’s attorney at the lectern Monday, University of Virginia law professor Daniel R. Ortiz, had hardly begun when Chief Justice John G. Roberts, Jr., tried out a hypothetical — one that had a point behind it, but that would not come out immediately. Roberts asked whether an employee would qualify as a supervisor if that worker had the power to decide what background music would play throughout the day, and used a threat to play music that a co-worker did not like — country music, or, perhaps, hard rock — in order to coerce that colleague to go on a date.
Ortiz said that might not be a sufficiently severe demand to give that employee the power of a supervisor. Workplace situations, the professor said, would have to be judged “on a case-by-case basis.” That was exactly the comment that led Roberts to say what he was driving at: the Chief Justice was hoping for a simple definition of employer — one like the definition given in this case by the Seventh Circuit Court — that would spare the courts from having to delve deeply into the details of individual cases. The Seventh Circuit limits “supervisor” to those with formal authority to hire, fire, promote, transfer, or discipline a worker.
It would quickly become apparent, though, that the Court was not so much interested in a simplistic definition that would save the courts some analytical effort, but rather in whether Ortiz could save the case by showing that his client could point to a supervisor who had harassed her. Justice Ruth Bader Ginsburg, for example, told Ortiz that he was making only an academic argument about defining supervisor, since there was no evidence in the lower courts that her complaint was, in fact, with a supervisor. In a moment, though, she was helping out Ortiz with suggested evidence in his favor.
Ortiz tried to argue that Vance’s lawyers were not able to put in all of the evidence they had on that point. That led Justice Elena Kagan to ask for “the best evidence you have of a supervisory relationship.” The professor ticked off some facts about the kitchen hierarchy at Ball State.
It soon became clear, though, that Ortiz was getting encouragement from the more liberal Justices. The conservative members of the Court began pressing him on what definition he was pushing, and how it would be met. Justice Samuel A. Alito, Jr., for example, wondered if it would have been enough for a co-worker to assign Vance to chop onions all day, or at least to do just chopping all day, onions and other items, too. It depends, Ortiz said, again putting emphasis on the need to go into detail.
When Deputy Solicitor General Sri Srinivasan rose to join Vance’s challenge to the simple definition the Seventh Circuit had given to “supervisor,” he might have been expected to continue the government’s argument that Vance was not in a position to press that issue because she could not show her woe was with a supervisor. But he chose instead to focus on his critique of the Seventh Circuit definition, and to press the government’s alternative, which he said — to the Chief Justice’s dismay — would require the courts to judge that issue on “a continuum.” That, the Chief Justice said, would bring on “countless cases” with courts having to sort through facts about given workplaces.
The Justices tried out other hypotheticals with the government lawyer, who steadfastly defended the Equal Employment Opportunity Commission’s definition of supervisor: someone with the capacity to control a co-worker’s daily activities on the job. When Justice Alito gave him a chance to argue that the case should simply be sent back to the Seventh Circuit, Srinivasan said that, if Vance were not allowed to add to the record on the supervisor issue, perhaps the Court should upheld the Seventh Circuit ruling against her.
Ball State’s attorney, Washington lawyer Gregory G. Garre, began by suggesting that the Court should uphold the Seventh Circuit, which, of course, would be the victory his client wanted. But Justice Alito wondered why the Court, after having granted the issue of how to define supervisor under Title VII, should not simply uphold the Circuit Court, but return the case for more factual development. Garre hesitated, saying the Court itself should define a standard, and then apply it to the facts already in the record. He made clear his view that Vance could not win on that record, but he nonetheless wanted new guidance from the Court on the legal standard.
Justice Antonin Scalia complained that no one was before the Court to defend the definition the Seventh Circuit had laid down, but Garre said that point was made by some of the business amici on his side of the case. It was becoming apparent that Scalia, like the Chief Justice, was not troubled by the Seventh Circuit’s approach. And the Chief Justice reinforced that point by wondering, rhetorically, whether Garre had any difficulty defending on behalf of his employer client a definition that would require the employer to defend itself case-by-case. Garre said the Court should adopt some limits — as he had outlined in his merits brief.
When the Justices seemed to draw from Garre’s argument — about the state of the record in the case — the conclusion that it was, as Justice Alito put it, “an extremely weak case,” Garre nevertheless continued to argue in favor of deciding it, even with its imperfections.
Near the end of the argument, Justice Anthony M. Kennedy, who had remained silent throughout, suggested that the answer to the seeming dilemma of this case might be to go along with the Seventh Circuit’s approach, but then add to it an increased obligation on the part of employers to look after their employees, and take further steps to prevent harassment on the job.
The hearing ended as Justices Stephen G. Breyer and Sonia Sotomayor were trying to help Ortiz, in rebuttal, come up with other evidence to show that Vance did, indeed, have a case.
