This Is What Judicial Activism Looks Like on the Supreme Court

In a dissent, two conservative justices invite a case to overturn a precedent on religion in the workplace that they dislike.,

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The Supreme Court’s refusal this week to hear a case challenging a 44-year-old precedent on the obligation of employers to accommodate their employees’ religious needs seemed destined to escape public notice as just another of the thousands of petitions the court turns down without explanation every term (more than 90 this week alone).

But Justices Neil Gorsuch and Samuel Alito made sure that Small v. Memphis Light, Gas & Water didn’t simply disappear. They wrote an opinion dissenting from the denial of review, taking up the petitioner’s call to overturn a 1977 case called Trans World Airlines v. Hardison. They found nothing deficient about the appeal. “There is no barrier to our review and no one else to blame,” they wrote. “The only mistake here is of the court’s own making — and it is past time for the court to correct it.”

There is nothing particularly unusual about justices dissenting publicly from their colleagues’ refusal to hear a case. Nor is it rare for this particular precedent to be a target. Justice Alito has made a practice of calling for its overruling, joined in the past by Justice Clarence Thomas and more recently by Justice Gorsuch, on the ground that the decision misinterpreted federal anti-discrimination law and gave too little protection to employees whose obligations at work come into conflict with their obligations of religious observance.

Publishing a dissent of this sort is a kind of Supreme Court performance art. Dissenting justices want to set down a marker to identify an issue and solicit future attempts to garner the four votes required to accept a case. Chief Justice William Rehnquist disliked these dissents, viewing them as akin to washing the court’s linen in public. The practice, common under his predecessor Chief Justice Warren Burger, gradually all but died away. Under his successor, Chief Justice John Roberts, it has come roaring back.

Although I know all this, something about this particular dissent, barely five pages long, jumped out at me. It left me with this thought: This is what judicial activism looks like.

To understand why requires a bit of background on the Hardison case. That 7-to-2 decision was an interpretation of Title VII of the Civil Rights Act of 1964, which bars discrimination in the workplace on account of race, sex or religion. (This was the statute the court interpreted last summer to bar employment discrimination against L.G.B.T.Q. individuals.) As part of the protection for religion, Title VII requires employers to “reasonably accommodate” an employee’s religious observance or practice as long as the accommodation does not impose “undue hardship on the conduct of the employer’s business.”

Congress did not define “undue hardship,” but in the Hardison case, the court did. The plaintiff, Larry Hardison, a TWA maintenance employee, was a member of the Worldwide Church of God who strictly observed that church’s Saturday Sabbath. He lacked the seniority to avoid occasional Saturday duty and brought a Title VII lawsuit when the airline failed to accommodate him. Rejecting his claim, the Supreme Court defined “undue hardship” as anything that imposed “more than a de minimis cost” on the employer. In his majority opinion, Justice Byron White said that to require employers to give an employee “the privilege of having Saturdays off” for religious reasons rather than for other kinds of reasons would amount to religious favoritism.

“The paramount concern of Congress in enacting Title VII was the elimination of discrimination in employment,” Justice White wrote. “In the absence of clear statutory language or legislative history to the contrary, we will not readily construe the statute to require an employer to discriminate against some employees in order to enable others to observe their Sabbath.”

That the two dissenters, Justices Thurgood Marshall and William Brennan, were the most liberal members of the court at that time is a reminder of the ideological realignment that the debate over church and state has undergone in the ensuing decades. Justice Marshall wrote that the decision was “deeply troubling, for a society that truly values religious pluralism cannot compel adherents of minority religions to make the cruel choice of surrendering their religion or their job.” The concern of the conservative majority was to avoid interpreting the statute in a way that ran up against the establishment clause, a provision of the First Amendment that the court’s current majority has taken giant steps toward effacing.

The case the court denied this week was nearly identical. Jason Small, a Jehovah’s Witness, was required by his religion to attend services on Wednesday nights and Sundays. He worked for a utility company in a position that required occasional mandatory overtime, and he used his vacation time to avoid conflicts. When the company denied his request to take a vacation day for Good Friday, he took the day off anyway, and was disciplined by losing two days’ pay. He sued on several grounds, including Title VII, and lost in Federal District Court in Memphis.

Affirming that decision, a three-judge panel of the United States Court of Appeals for the Sixth Circuit observed that Mr. Small had not directly challenged the company’s claim that his requested accommodation would have imposed an undue hardship. Two judges on the panel, Amul Thapar and Raymond Kethledge, who are among the circuit’s most conservative members, wrote a separate concurring opinion — in effect, concurring with themselves, with an explanation. “In the end, this case doesn’t involve a challenge to the ‘de minimis’ test,” they wrote. “But litigants should consider such challenges going forward.”

In Mr. Small’s appeal to the Supreme Court, his lawyers insisted that “even if he somehow failed to raise the issue as fully as the court below might have wished,” his case was still worthy of Supreme Court review and was a good vehicle for overturning the de minimis standard of the Hardison case. “If the undue hardship issue were somehow deemed forfeited, the court should proceed anyway, as there is no prejudice to any party or court,” the petition said.

Except that’s not how the Supreme Court works. There are rare exceptions, but generally the court refuses to take up questions that have not received a full airing in the lower court. In fact, Justices Alito, Thomas and Gorsuch conceded as much in February of last year, when they issued a statement “concurring in the denial” of a similar case because “this case does not present a good vehicle for revisiting Hardison.” Writing for all three, Justice Alito added, “But I reiterate that review of the Hardison issue should be undertaken when a petition in an appropriate case comes before us.”

One of those three, Justice Thomas did not join this week’s dissent. Neither did the court’s other conservatives, Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Perhaps the obvious impatience of Justices Alito and Gorsuch, their eagerness to depart from the court’s usual practice in order to get their hands on a precedent they don’t like, was a step too far even for colleagues who most likely agree with them on the merits of the issue. (Without comment, the court this week also denied a second case on the same issue, an appeal from the United States Court of Appeals for the 11th Circuit, Dalberiste v. GLE Associates. The Hardison issue wasn’t cleanly raised in that case, either.)

The two justices’ bring-me-a-case plea qualifies as judicial activism in my book, but it’s just one piece of the picture. The Hardison decision was a case of statutory interpretation, meaning that if Congress believed that the Supreme Court got Title VII wrong in 1977, it has had 44 years to amend the statute.

That is not a far-fetched scenario. Congress added the religious accommodation provision to Title VII in 1972 in response to an appeals court decision that upheld a company’s refusal to permit an employee to take Sundays off. Congress passed the Civil Rights Act of 1991, which President George H.W. Bush signed into law, to overturn several conservative Supreme Court decisions that imposed obstacles to Title VII litigation.

Has Congress never considered repudiating the court’s de minimis interpretation of “undue hardship”? Actually, it has: Bills to do just that were introduced in 1994, 1996, 1997, 1999, 2002, 2005, 2007 and 2010. They failed to pass. So now Justice Alito and his one or two allies want to do Congress’s work for it. Someday, maybe soon, when the right case arrives, he may find the additional allies he needs.

That’s what judicial activism looks like.

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