I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.

BlogRoll

I have the impression these people aren’t getting along, Part 2

It has been widely reported that, while Justice Ginsburg was reading a statement about her dissent in a sexual harassment case on Monday, Justice Alito, right there on the bench, was acting out like a school child.  A badly behaved school child.  The Washington Post describesAlito “visibly mocking” Ginsburg while she read her dissent:

Ginsburg, the second woman to serve on the high court, was making her argument about how the majority opinion made it easier for sexual harassment to occur in the workplace when Alito, seated immediately to Ginsburg’s left, shook his head from side to side in disagreement, rolled his eyes and looked at the ceiling. His treatment of the 80-year-old Ginsburg, 17 years his elder and with 13 years more seniority, was a curious display of judicial temperament or, more accurately, judicial intemperance. Typically, justices state their differences in words — and Alito, as it happens, had just spoken several hundred of his own from the bench. But he frequently supplements words with middle-school gestures.

Think about this.  As a friend pointed out at lunch today, it’s a sexual harassment case, and Justice Alito can keep himself from obnoxious behavior directed at his female collegue. While on the topic of that case, I’ll describe it some to make clear why Ginsburg felt so strongly about her statement in defense.  For a sexual harassment claim to succeed, either the employer has to create an environment that allows such, or the harraser has to be a supervisor.  Alito holds that taking a supervisor to mean “the person who supervises an employee’s work” would confuse a jury.  He limits it to people who can hire and fire. Judge Posner, recognizing one of his own cases in Justice Ginsburg’s dissent, highlightsthe absurdity of this analysis by recalling that case:

I noticed in a footnote in the dissent a reference to a case that seemed familiar. I thought I might have written it, and it turned out I had. It’s called Doe v. Oberweis Dairy, it was decided in 2006, and the dissent quotes the following passage from it: “The difficulty of classifica­tion in this case arises from the fact that Nayman, the shift supervisor, was in between the paradigmatic classes [of supervisor and co-worker]. He had supervisory responsibility in the sense of authority to direct the work of the [ice-cream] scoopers, and he was even authorized to issue disciplinary write-ups, but he had no authority to fire them. He was either an elevated coworker or a diminished supervisor” (emphasis added). I didn’t think it necessary to choose between those classifications.

The plaintiff in Doe was a 16-year-old high school student who had been hired as a part-time ice cream scooper at the defendant’s ice cream parlor. Her suit alleged that Nayman, her 25-year-old shift supervisor, had harassed her sexually, culminating in having sex with her, for which he was prosecuted, convicted, and imprisoned because she was below the age of consent. Most of the employees of the ice cream parlor were teenage girls, and Nayman regularly hit on them. He would, as one witness explained, “grope,” “kiss,” “grab butts,” “hug,” and give “tittie twisters.” He did these things in the store. He would also invite the girls to his apartment, and had sex there with two of them in addition to the plaintiff.

My opinion for the three-judge panel that decided the case states that if “if forced to choose between the two pigeonholes, we would be inclined to call Nayman a supervisor … because he was often the only supervisory employee present in the ice cream parlor. He was thus in charge, and had he told his boss that one of the scooper girls was not doing a good job and should be fired, the boss would probably have taken his word for it rather than conduct an investigation, since [the plaintiff], a part-time teenage worker, would hardly have been considered a valued employee.” But, we added, “there is no compelling need to make a dichotomous choice. … Binary distinctions are not the only ones that judges and juries are capable of making.” The important thing was to impose on an employer “a higher duty of care to protect its employees against those employees whom the employer has armed with authority, even if it is less than the authority that triggers the employer’s strict liability. … The fact that Nayman was often the only supervisor in the ice cream parlor and that the workers he was supervising were for the most part inexperienced teenagers working part time created a risk of harassment by him that required his employer to take greater care than if Nayman had been one of the teenage scoopers.” And so we reversed the grant of summary judgment for the employer; the plaintiff had enough evidence to entitle her to a trial. (She later settled with her employer.)

Update: Slate has a story setting this in a wider context:

After authoring a slew of 5–4 conservative opinions this week and helping to effectively kill the Voting Rights Act, Justice Samuel Alito should be in a good mood. He’s not. On Monday, a cranky Alito rolled his eyes, shook his head, and looked at the ceiling— a jarring breach of court decorum—as Justice Ruth Bader Ginsburg read a dissent from the bench. In weeks prior, the justice openly glowered and rolled his eyes at Justice Elena Kagan on two separate occasions. It’s a grand court tradition for justices to get grumpy and dyspeptic during the final, toughest days of the term. But even cantankerous Justice Antonin Scalia has learned to take out his anger on cases, not people (or at least, not people present).

The piece talks about his behavior at oral argument:

The depth of Alito’s subtle malice, his irked impatience, can only be heard in his delivery. Take a listen at Oyez, starting around the 63:30 mark, to hear how Alito’s halting cadence conveys his exasperation that gay people had the gall to actually assert their rights in court. “You want us to step in?” he demands. “We do not have the ability to see the future!” His voice, thin and crackly, churns with indignation. His question is not really a question; it’s a cri de coeur taken straight from the anti-gay marriage movement, which routinely agonizes over the newness and “revisionism” of same-sex marriage.

In recent years, Alito’s temperamental flare-ups have become increasingly directed at his colleagues. Court procedure dictates that the justices argue with one another through the proxy of an advocate. But Alito is entirely willing to direct his barbs directly at his colleagues. Even Scalia, Alito’s usual ideological ally, isn’t safe from his prickly jibes. During oral arguments forBrown v. EMA, a case involving the sale of violent video games to minors, Alito mocked Scalia’s originalism by informing an advocate, “I think what Justice Scalia wants to know is what James Madison thought about video games. Did he enjoy them?” Alito was obviously amused by his own belittling quip, as was the audience: The exchange, which begins around 16 minutes in, drew laughter from the crowd. Scalia, though, was clearly unamused. “No,” he growled, “I want to know what James Madison thought about violence.” A frequent court jester himself, Scalia still takes his own philosophy quite seriously. He doesn’t take kindly to a colleague ridiculing it—especially in public.

Comments are closed.