Mixed-Up Names and Mixed Motives at the Supreme Court

The case of Gross v. FBL Financial Services, argued this morning at the Supreme Court, is complex enough to make anyone's head spin -- including the head of Carter Phillips, Sidley Austin's Supreme Court veteran, one of the best in that small universe of skilled advocates. During an intense half-hour at the lectern, Phillips managed to address Justice Stephen Breyer as "Justice Ginsburg," not long after he had attributed an opinion of retired Justice Sandra Day O'Connor to... Justice Ginsburg. 

That mix-up between the female justices was especially awkward since Phillips was addressing Ginsburg at the time. When Ginsburg politely pointed out the error, Phillips said, "Did I say 'Ginsburg'? I'm gonna hear about this one. I apologize." So, even though O'Connor has been off the court for more than three years, the odd propensity of lawyers -- veterans and novices alike -- to mix her up with Ginsburg continues.

The case involves a "mixed-motive" age discrimination claim. That's one in which the employee claims an adverse job action -- here a demotion -- was taken because of his age, but the employer says that the action was taken for other, permissible reasons. The justices wrestled with how much evidence the plaintiff needs to present, and what kind. The words direct, significant, circumstantial, and strong were all tossed around. Also confounding the Court was whether the evidence has to show that age was only one factor, a motivating factor, or was a "but for" factor -- the action would not have happened but for the plaintiff's age. 

It was getting so layered and complex that at one point, Justice David Souter suggested ditching all the standards and burden-shifting and leaving it up to sensible jurors. "Juries are smarter than judges," Souter announced, a statement that is sure to reverberate for years to come.

The case seemed also to catch Phillips' adversary, Eric Schnapper, off-stride as well. Schnapper, the able University of Washington law professor who has argued many key employment discrimination cases on behalf of employees, appeared at a loss for for words when Chief Justice John Roberts Jr. asked him a seemingly straightforward question: What is the meaning of the phrase "direct evidence," which the lower court said the plaintiff had to present in order to shift the burden to the employer? Schnapper recovered, but seemed on the defensive more than usual.  

The only advocate this morning who seemed in top form was Lisa Blatt, assistant to the solicitor general, who argued as amicus curiae on the side of the employee, with direct, no-nonsense answers that contained a minimum of equivocation. More on today's Supreme Court action later at legaltimes.com.

Comments

[John Griffin]

Interesting that the employer's counsel AGREED with Souter about jurors being smarter than lawyers. That was shocking, even though it is true!

[Dennis Egan]

Juries are smarter than judges. Justice Souter hits the nail on the head....