Senate workers’ rights: skepticism abounds
on Apr 24, 2007 at 2:25 pm
Analysis
When skepticism about a case before the Supreme Court is expressed in a half-dozen different ways, it is fair to speculate that the case may be doomed. What might be a historic test of the U.S. Senate’s potential immunity to being sued for workplace discrimination against its own employees proved fascinating to the Justices on Tuesday — but an across-the-bench uncertainty about reaching that question and about the merits of the issue dominated the hour of oral argument in Office of Senator Dayton v. Hanson (05-618).
From an opening question by Justice Ruth Bader Ginsburg, suggesting that the Court perhaps should defer to the view of the Senate itself that it does not really desire immunity to employee lawsuits over job rights, the argument went heavily against the Senate’s employment counsel arguing for expansive immunity. Repeatedly invoking the notion that some workers are so key to the legislative process that they are “second selves” of the senators, Chief Employment Counsel Jean M. Manning suggested senators need total discretion to fire such workers without then being sued. The argument, though, seemed to find no takers — even assuming (an insupportable assumption, it seemed) that the Court was ready to reach the issue on the merits.
Justice John Paul Stevens, for example, asked in a voice laced with incredulity: “Firing someone is a legislative act?” Although Manning unhesitatingly replied that “firing your second self is a legislative act,” it seemed to carry no persuasive weight. Somewhat sarcastically, Ginsburg asked: “How many second selves would there be? Who [among Senate employees] is not a second self?” Manning said there were “a lot of second selves.”
Going over the details of the work assignments of the fired Senate aide who brought the job bias case against the office of former Minnesota Democratic Sen. Mark Dayton, Justice Stephen G. Breyer says he could find no real connection to the legislative process. “If he’s included” as a “second-self” who can be fired at will, Breyer said, “so is a full-time furniture mover” working for a senator.
Justice Anthony M. Kennedy soon suggested to Manning that “your argument completely eviscerates” the law that Congress passed in 1995 to bring its own employees under the protection of 11 federal employment rights laws. Manning argued that about 75 percent of the Senate’s employees would be protected, even under her argument. But the Justices appeared to remain in doubt about just how courts would go about defining who is covered, and who is, so to speak, “a second self.”
Justice Antonin Scalia was the most hostile among the Justices to the idea that the Court should even have been drawn into this dispute at this point. He repeatedly commented that the 1995 law giving the courts jurisdiction to hear congressional employees’ job rights lawsuits did not provide for the appeal of this case, under any circumstances. An appeal to the Court is allowed, he noted, only if the constitutionality of the 1995 law is drawn into question, and there is no issue in this case about that. At most, he said, the office of ex-Sen. Dayton was making an “as-applied” challenge, and there is no provision for an appeal in that situation, said Scalia.
Both Scalia and Breyer suggested that, if an employee’s lawsuit threatened to intrude upon the legislative process, the trial judge could limit the evidence to protect the immunity of the “speech and debate” activity of the Senate. “Why should the whole suit be precluded?” Scalia asked rhetorically.
Richard Salzman, a Washington, D.C., lawyer representing the fired Dayton employee, Brad Hanson, argued that his client’s duties were mostly in constituent services, with at most 5 percent of his time related in some way to legislation. And, he contended, “there was no legislative act in Mr. Hanson’s firing; he was just fired.”
The Justices showed some interested in how the courts would handle a specific employee lawsuit, in a way that would avoid intruding into legislative acts. Justice Souter and Stevens, for example, seemed somewhat unsure about how a senator could avoid having a lawsuit probe into his or her legislative acts, if that were somehow implicated in the employee’s lawsuit. Salzman tried to assure the Court that that situation would “rarely be the circumstance,” and that the 1995 law provides an evidentiary shield if there is a risk that evidence in the case would tread upon Speech and Debate Clause immunity.
The Senate itself has lined up on ex-employee Hanson’s side, and its assistant legal counsel, Thomas E. Caballero, focused his argument mainly on the point that the Court had no jurisdiction to hear the Dayton office appeal. Congress, he said, was intent on giving its employees for the first time a judicial process for their complaints about denial of their workplace rights, and the Court should allow that process to go forward.
The case was heard by an eight-member Court, with Justice Stevens presiding. Chief Justice John G. Roberts, Jr., is recused; he took part in some facets of the case when he was a judge on the D.C. Circuit Court.
The Court is expected to decide the case before recessing for the summer.
