On Monday, the U.S. Supreme Court decided Lewis v. Chicago, an employment discrimination case. The facts were oddly familiar. In January 1996, the City of Chicago offered a written exam to applicants for its firefighter positions. Anyone scoring between 89 and 100 on the test were placed on the “well qualified” list, and the city would fill its open positions by selecting candidates randomly from this list. Anyone between 65 and 89 were deemed “qualified” yet unlikely to get a call from the city. Anyone under 65 failed the test.
Long story short: As the city began to select from the “well qualified” list, African American applicants from the “qualified” list argued that the selection process had a disparate impact in violation of Title VII. The district court agreed and ruled in favor of the plaintiffs. The Seventh Circuit reversed, on the ground that the plaintiffs were required to file a charge with the EEOC within 300 days from the time the discriminatory act took place yet failed to do so. According to the panel, the discriminatory act was the sorting of all applicants into the three pools on the basis of their test scores. In the words of Judge Posner, writing for the three-judge panel, “[t]hat discrimination was complete when the tests were scored and, especially in light of the mayor’s public comment about them, was discovered when the applicants learned the results.”
This is right out of Groundhog Day.
Anyone familiar with the recent Ricci v. Stefano or Ledbetter v. Goodyear Tire & Rubber could take an educated guess about the outcome in Lewis. You would only need to know two things. First, the justices are strategic political actors who seek, whenever possible, to further their own policy objectives. And second, the conservative wing of the Court is neither receptive to broad and expansive readings of employment discrimination law, nor is it welcoming to claims brought by plaintiffs of color. These two facts are clearly on display in Ricci and Ledbetter. This would mean that in Lewis, the Supreme Court, in a 5-4 decision, would uphold the lower court decision and rule the claims by the black plaintiffs as untimely.
And yet, the Court did exactly the opposite, ruling unanimously for the black plaintiffs. How to explain it? How to explain such an opinion authored by Justice Scalia and joined by Justices Thomas, Kennedy, Alito and the Chief Justice (and the rest of the justices, of course)?
I don’t have a definitive answer. But I have some ideas.
First, let me be clear about the puzzle itself. The Court seldom sides with the interests of racial minorities, and those times when it does demand an explanation. This is Derrick Bell’s interest-convergence thesis. Relatedly, the Supreme Court seldom takes broad, expansive views of federal statutes. This is out of the strategic decision-making school, which argues that the justices are strategic actors and “single-minded seekers of legal policy.” Furthermore, the legal question did not appear all that difficult, and Judge Posner appeared to have a pretty good argument. To read the Scalia opinion is to get a pretty strong impression that the Court was going out of his way to decide for the black plaintiffs.
This last point is too important to miss. Think of it this way: Judge Posner, as circuit judge, was not necessarily making new law as much as interpreting precedents. I can be naïve about many things, but reading his opinion in Lewis leaves one with a strong sense that Judge Posner is reaching a conclusion mandated by law. In contrast, Justice Scalia sits on the highest court in our federal system, so he is able to reach any conclusion he wishes, regardless of precedent or even common sense – and if you don’t believe me, go read the Shaw v. Reno line of cases, or the Court’s creative interpretations of the Voting Rights Act.
The point is this: Judge Posner is subject to reversal, Justice Scalia not so much (congressional override is a real possibility, though not a likely one). As you read their opinions in Lewis, Posner’s is straight-forward, Scalia’s is too clever by half. What does that tell us about the strategic policy-making behind the case?
What then, is the strategy behind Lewis? In other words, why does the Court, in a unanimous opinion authored by Justice Scalia, side with the black plaintiffs? How to explain Lewis v. Chicago?
One possibility is that the Court is finally turning a page, after 200-plus years, on its race jurisprudence. I wouldn't bet the farm on that.
The only other explanation I can think of is that the Court is licking its wounds after Ledbetter. This is the case where the Court, in a 5-4 decision authored by Justice Alito, held that a Title VII plaintiff must bring a pay discrimination case within 180 days from the intentional pay-setting decision. According to the Court, subsequent paychecks were not separate acts of discrimination, so the plaintiff had failed to file her claim in a timely manner. The fact that she only found out about the discrimination after the statutory window had run was unfortunate but irrelevant under the statute.
Justice Ginsburg dissented and took the unusual step of reading it from the bench. The case became an issue during the 2008 presidential election, with then-Senator Obama supporting an amendment to Title VII in response to the Ledbetter case and Senator McCain opposing it. As his first act in office, President Obama signed into law the Lilly Ledbetter Fair Pay Act of 2009.
Could it be that the justices are paying attention?