A number of Supreme Court Justices "” at least a strong nucleus of a potential majority "” on Wednesday showed fairly strong attachment to an idea that definitely would reduce the chances that an old civil rights law could be used to protect workers against a modern form of punishment at work. In the oral argument on CBOCS West v. Humphries (06-1431), those Justices implied that the Court could prevent claims of retaliation for complaining of workplace racial bias, under a law that dates to 1866, by simply concluding that the law gives no one the right to sue to raise such an issue. The Justices who seemed fascinated with denying a "cause of action" for retaliation under so-called "Section 1981"³ said they could find nothing in that statute to permit such a lawsuit.

As the CBOCS case was prepared for the Court's review, the focus was entirely elsewhere than on whether anyone has a right to sue under Section 1981; that right, apparently, was thought to be resolved long ago. Instead, the petition and briefs focused on whether the Court's past precedents on other civil rights laws settled that reprisals for claiming violations of rights had to be barred in order to make the rights effective, on whether the words of Section 1981 would support a retaliation claim, and on whether public policy would support such a claim even if it is not explicitly mentioned in the language of that 142-year-old statute.

But, as the oral argument developed on Wednesday, Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Antonin Scalia returned, repeatedly, to the issue of whether the Court should now rule that "” whatever the words of the law might convey about the specific rights at stake "” no one is given the option of filing a lawsuit focused on a claim of retaliation as punishment for complaining of workplace discrimination.

Actually, it was Justice Stephen G. Breyer who first raised that issue. He did so in quizzing CBOCS' lawyer, Michael W. Hawkins of Chicago, about whether Section 1981 could be read to imply protection against reprisals. Hawkins kept insisting that the law's plain language does not embrace retaliation claims. But, Breyer asked, does it say that there is a right to sue at all to enforce Section 1981? Hawkins said the Court had implied that there was a right to sue. So, said Breyer, "if they're implying a right of action from the statute, why wouldn't courts also imply those rights of action necessary to make the statute effective?" Hawkins' response was to focus on the language of the statute.d

That stirred Justice Scalia to pursue the point. "Mr. Hawkins," he began, "don't we have a whole line of recent cases which say we have set our face against implying causes of action?.A whole bunch of recent cases saying we're not going to do that any moreWe used to do it, bu we said we're not going to do it anymore." Hawkins readily and repeated agreed.

The Chief Justice immediately picked up on the point, noting that the Court more recently had foresworn implying rights to sue.

The point, however, took on greater prominence when the lawyers defending retaliation claims took to the podium. As Chicago attorney Cynthia H. Hyndman was arguing that Congress had made it clear it wanted such claims available under Section 1981, Justice Kennedy retorted: "Your argument is that we should create a cause of action [for retaliation] in order to make this effective. I understand that argument. I think the Court's cases stand against it[and] you're admitting that nothing in the words of the statute as amended help you." As the exchange went on, it was not entirely clear whether Kennedy and Hyndman were debating over whether retaliation was or was not covered because that word is not in the law, or over whether the law made no provision to sue to make such a claim.

But shortly afterward, the Chief Justice returned the focus explicitly to the question of a right to sue. Citing one of the Court's most prominent modern rulings declining to allow a right to sue under a federal civil rights law (Alexander v. Sandoval "” a case not mentioned in the parties' briefs here), Roberts noted the trend away from allowing implied rights to sue.

Kennedy summed up where he, the Chief and Scalia had been focusing, telling Hyndman: "What I'm taking away from the argument is that if I were to write this opinion in your favor, I would have to say that it's necessary to imply a cause of action prohibiting retaliation in order to make these other words effective. And that seems to me a very limited argument and a very difficult argument for you to prevail uponYou want to add a new term. You can't use the existing terms to say that there is a cause of actionthat helps your client."

The right-to-sue question also figured importantly in the Justices' exchanges with U.S. Solicitor General Paul D. Clement, who was there to support inclusion of retaliation claims under the old law. After Clement said the Court had previously inferred a right to sue under Section 1981, Scalia commented: "We inferred that cause of action in the bad old days, when we were inferring cause of action all over the place." Kennedy asked: "Are you asking us to infer, to find implied in the words a cause of action against retaliation?" Clement replied: "No. We're asking you to interpret the cause of action that exists to include retaliation." Kennedy said he could find no words in the law to support that interpretation.

The Court is expected to decide the CBOCS case before late spring.

Posted in CBOCS West v. Humphries, Everything Else