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Why Supreme Court transition is important to employers—and the republic

by Mark I. Schickman

U.S. Supreme Court Justice Antonin Scalia’s death marks a landmark in American law. Off the bench, he was avuncular, professorial, funny, and friendly, a mind like a machine gun, dangerous and quick.

In last year’s biggest employment case, EEOC v. Abercrombie and Fitch, Scalia was the most aggressive questioner of the Equal Employment Opportunity Commission (EEOC), repeatedly challenging whether the agency used the right standard in accusing the clothing manufacturer of religious discrimination against a hijab-wearing Muslim applicant. In the end, it was Scalia who wrote the opinion for the eight-justice majority, agreeing with the EEOC and reinstating the claim against Abercrombie & Fitch. A strong intellect is not afraid to change his mind.

You either loved or hated Scalia’s opinions. His dissents were stinging, with a playfulness of verse designed to attract attention. His decisions weren’t consistent, and his signature principles sometimes took second seat to highly political settings. As every Democratic and Republican presidential candidate preaches as gospel that it was a mistake to invade Iraq, blame Scalia as much as anyone because Bush v. Gore put George W. Bush and Dick Cheney in the White House to start the Iraq War. Don’t underestimate the effect of the U.S. Supreme Court.

It is fair to ask why nine unelected lawyers are given this power. I answer that, working at its best, the Supreme Court is the cornerstone of democracy. It exists ideally as a nonpartisan, intellectually honest guardian of the law, most importantly when limiting the tyranny of the majority. Presidents, governors, and legislators answer to the voters, so if 60 percent of them don’t want women to drive or want to keep synagogues or mosques out of their town, such laws will pass. It is up to the nine lifetime-appointed justices to say the Constitution trumps the ballot box when it comes to gender or religious discrimination.

We experienced the republic-saving power of the Supreme Court 15 years ago in Bush v. Gore. Half of the country’s votes were canceled by the Court; the catch-22 was that if it ruled the other way, the other half of the country would be disenfranchised. A no-win, which would have led to riots, death, and civil unrest anywhere else. Americans accepted the decision without a hiccup. It’s remarkable when you think about it. Why was the transition so peaceful? Because a 5-4 Supreme Court made the call. An honest umpire, albeit in an ivory tower.

A great justice clings to his or her consistent constitutional standards regarding every constitutional protection, from the Second Amendment right to bear arms, to the Fourth Amendment right to privacy, to the First Amendment right to free speech.

Those last two issues—our right to privacy and the limits of free speech—are being redefined by technology, and the Supreme Court will soon decide whether our backyards remain private under the watch of drones, whether our movements are private when always recorded, whether our e-mails and texts are private when routinely collected and saved by Internet providers. In Kyllo v. United States, Scalia ruled that police thermal imagery of a home was an unconstitutional “search.” True to his originalist/textualist philosophy, if in 1776 it took a search of someone’s home to tell how many people were there, it’s a search when you use 21st century technology to do so remotely. Who knows how Scalia’s replacement will rule on the next defining privacy case.

“Precedent” is an important concept by which a justice must base a decision on the Court’s prior rulings. This is a partial brake on a justice changing the law based on personal preference alone. Having said that, this is a lifetime job, with no real accountability except to one’s colleagues, one’s integrity, and history.

I’m glad that Americans will see press about the Supreme Court; public education on the courts is pitifully bad. I hope that every judicial nominee, regardless of party or philosophy, will be a great scholar, writer, and thinker committed to justice and the rule of law—labels like “conservative” or “liberal” are secondary to those attributes. But most of all, a Supreme Court justice needs to be incorruptible, in nobody’s pocket, smart enough to see the right call, and honest enough to make it.

Before the upcoming six-month harangue about liberal or conservative values on the Supreme Court, let’s recognize the passing of one of the great legal minds of our generation; testament to that is both the praise of lawyers on the right and the grumbling of lawyers on the left. Scalia’s prose will be influential for decades to come.

Let’s also remember that a court seat, albeit important, shouldn’t be at the heart of political debate. You don’t ask umpires to swear allegiance to either team; you ask how good they are and how honest they are, period. We have many other important questions for all of the candidates—let’s start asking them soon.

Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. He may be contacted at schickman@freelandlaw.com.