Job Bias Challenge Opens New Term
The first case on the first day of the new U.S. Supreme Court term—an age discrimination challenge—left a number of justices wondering why they had taken it—not exactly the most auspicious start to a new term.
And to make matters worse, at least for the lawyer representing the job bias claimant, who also happened to be a lawyer, Justice Antonin Scalia scolded the advocate for not raising all of his opposing arguments earlier in his brief in opposition to Supreme Court review.
"We don’t like to dismiss a case as improvidently granted. Only when the case is before us, counsel finds all sorts of reasons why we shouldn’t have taken it in the first place. You should have told us that before we took it," Scalia told Edward Theobald of Chicago’s Law Offices of Edward R. Theobald in Madigan v. Levin.
A contrite Theobald replied, "We could have done a better job, your honor, and I apologize for that."
His opponent, Illinois Solicitor General Michael Scodro, fared somewhat better, although he too had to apologize for a slip of the tongue when he referred to a question that Justice Elena Kagan had asked as a question from Justice Sonia Sotomayor. Neither justice appeared to take offense, although Justice Sandra Day O'Connor, sitting in the justices’ guest section, and Justice Ruth Bader Ginsburg undoubtedly experienced a wave of déjà vu from the time they served together.
Neither the shutdown by the rest of the government nor rainy weather deterred a substantial line of visitors hoping to get into the courtroom for opening-day arguments. Had any of them visited the court building during the previous term, they would have noticed on Monday that the scrim enclosure surrounding scaffolding on the building’s west front façade was gone, removed on September 21. The building’s front is undergoing a complete restoration to deal with deterioration from age and weather. All work is scheduled to be completed by November.
"Unfortunately, the scrim couldn’t be preserved in the removal process," court spokeswoman Kathleen Arberg said. Inside the building, it was business as usual. At 9:30 a.m., the court released a 94-page orders list containing mostly denials of review in petitions filed over the summer. No new cases were granted.
Promptly at 10 a.m., Chief Justice John Roberts Jr. gaveled the prior term to an official close and opened the October 2013-14 term. Roberts introduced Scott Harris as the new clerk of the court and noted Harris’ earlier 11 years of service as the court’s legal counsel. Harris is only the 20th clerk of the Supreme Court.
After admitting new members of the Supreme Court bar, including large contingents from the U.S. Department of Justice and Regents University, the chief justice called for arguments in the age discrimination case that would soon frustrate him and his colleagues.
Some justices clearly wanted to get to the main question in the case: whether Congress, by enacting the federal Age Discrimination in Employment Act, had foreclosed age discrimination claims under 42 U.S.C. 1983.
The U.S. Court of Appeals for the Seventh Circuit held that the Section 1983 claims were not precluded—a ruling out of step with at least four other circuits.
Scodro barely had time to address the main question because nearly half his argument time he spent dealing with whether the appellate court had jurisdiction to rule on that issue when the case came to it as an interlocutory appeal about qualified immunity. Another issue that troubled the justices was the district court’s ruling—affirmed on appeal—that former Illinois senior assistant attorney general Harvey Levin was not covered by the Age Discrimination in Employment Act because he was an appointee in a policymaking position.
The Levin age discrimination case was one of two arguments Monday morning. The second was in three consolidated cases that could determine whether third parties such as law firms can be held liable in securities fraud class actions. The cases, led by Chadbourne & Parke v. Troice, stem from the Allen Stanford $7 billion Ponzi scheme.
Victims sued Chadbourne as well as Proskauer Rose and the insurance company Willis Holdings under state law. The defendants, represented before the high court by Paul Clement of Bancroft, argue that the lawsuits are precluded by the Securities Litigation Uniform Standards Act, which prohibits state class actions for fraud committed "in connection with the purchase or sale of a covered security." The plaintiffs, for their part, argue that the suits should go forward because they involved certificates of deposit that victims bought from Stanford’s bank—not covered securities.
As a result, the entire hour of argument was taken up with questions aimed at deciding whether the Stanford scheme involved such covered securities. No mention was made of third-party liability.
"This is a bank that doesn’t issue securities," said Tom Goldstein of Goldstein & Russell, who argued for the class action plaintiffs. Clement defined the term more broadly, prompting justices to ask whether transactions ranging from home loans to prenuptial agreements would be covered by the law.
Tony Mauro contributed to this report. Contact Marcia Coyle at email@example.com.