Ethics & Public Policy Center

Deserving Derision

Published in National Review Online on December 12, 2005



Here’s a simple test. Imagine — just hypothetically, of course — that an appellate judge’s position on a complicated question of civil-rights law was adopted unanimously by the Supreme Court. Assume that the judge wrote a masterful and scholarly opinion explaining his position. And assume further that he had the courage and clarity to take that position alone in dissent — in the face of opposition from all of his colleagues on the en banc court. Now suppose that that judge was nominated to the Supreme Court.

Would you be inclined to regard the judge’s opinion in that case as affirmative evidence of his fitness for the Supreme Court? Or would you make it a centerpiece of your argument that the judge is “especially harsh” and dangerously out of the mainstream, that he “seek[s] to undermine established civil rights law,” and that he has shown a “disregard for victims of sex and race discrimination”?

If you answer “yes” to the first question, then you are a person of at least ordinary good sense. If you answer “yes” to the second question, then your job options may be limited to working for People for the American Way or writing legal commentary for Slate.

The very real case that my hypothetical describes — and that PFAW (the source of the quotes above) highlights in its attack on Judge Alito — is Alito’s 1996 dissent in Sheridan v. E.I. DuPont de Nemours & Co. As I explained in detail over a month ago, PFAW’s scare claim about the dire consequences that would result if Alito’s position were “adopted more broadly” faces one tiny problem: The Supreme Court, in a unanimous opinion written by Justice O’Connor, embraced exactly Alito’s position in its 2000 ruling in Reeves v. Sanderson Plumbing Products, Inc.

The non-lawyer may skip the next two paragraphs.

Specifically, the Supreme Court in Reeves addressed the conflict among the courts of appeals on the technical legal question “whether a plaintiff’s prima facie case of discrimination …, combined with sufficient evidence for a reasonable factfinder to reject the employer’s nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination.” On one side of the question, the Court cited six courts of appeals, including the ten-member Third Circuit majority in Sheridan, in support of the proposition that this combination “always” is sufficient to sustain a jury’s finding of liability. On the other side of the question, the Court cited four courts of appeals, including two pre-Sheridan decisions from the First and Fifth Circuits (Woods v. Friction Materials, Inc. and Rhodes v. Guiberson Oil Tools, respectively) that Alito sided with at the opening of his Sheridan dissent, that rejected this categorical “always” conclusion and maintained that the plaintiff “must introduce sufficient evidence for [the] jury to find both that [the] employer’s reason was false and that [the] real reason was discrimination.”

The unanimous Court in Reeves unambiguously embraced the position that Alito had taken:

[A] plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury’s finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant’s explanation, no rational factfinder could conclude that the action was discriminatory. [Emphasis added.]

PFAW and Emily Bazelon of Slate take two different approaches to the unwelcome fact that a unanimous Supreme Court adopted the position of Alito’s that they pretend is extreme. PFAW simply ignores the fact. Indeed, PFAW falsely asserts that the question that the Court resolved in Reeves remains unresolved.

Bazelon is more ambitious. Displaying the same qualities that permeated her wildly distorted account of a 1984 Justice Department memo that Alito wrote, Bazelon pretends that the Supreme Court rejected both the Third Circuit majority’s position (which it did) as well as Alito’s position. In a jumble of confusion, Bazelon first asserts that the point of division between the Sheridan majority and Alito was that Alito would have required a plaintiff alleging discrimination to prove “‘that intentional discrimination on the ground alleged by the plaintiff was a determinative cause of the challenged employment action.'” But this passage of Alito’s that Bazelon quotes sets forth an elementary proposition that the Sheridan majority readily acknowledged, as it also stated that a plaintiff must show “that discrimination was a determinative cause, as opposed to the sole cause, of the employer’s challenged action.”

Mistakenly believing that only Alito recognized this elementary proposition, Bazelon then somehow translates it into the very different proposition, wholly without any basis in Alito’s opinion, that Alito was insisting that the plaintiff show “a smoking gun” — that is, direct evidence of discrimination. But nothing in Alito’s opinion turns on the distinction between direct and indirect evidence. Alito agreed with the district judge (a female, as it happens) that the plaintiff had failed to offer sufficient evidence of any type from which a rational jury could infer that she had been the victim of discrimination based on sex.

Bazelon tops it off by claiming that the Court in Reeves rejected “Alito’s higher standard (employee only wins if she shows her employers were motivated by discrimination)” (emphasis in original). But this supposed “higher standard” is the core principle that has long been recognized to be the very essence of a discrimination case: claims of discrimination require, wonder of wonders, proof of discrimination. This principle was not in question in Reeves (or in Sheridan), and the Court in fact reiterated it: “The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.”

The legal question in Sheridan may have been complicated, but the broader lesson of the case for the Alito confirmation process is simple. Through some combination of laughable incompetence and shameless mendacity, the Left persists in presenting as evidence of Alito’s purported extremism a case in which the Supreme Court unanimously embraced his position. Alito’s attackers have amply proved that they simply can’t be trusted, and it’s long past time for the media to stop trusting them — and to stop recklessly recycling their wild charges.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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