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It was a routine day at the Supreme Court, with five decisions announced and a single oral argument on the docket. But for 80 minutes on Feb. 20, spectators in the courtroom saw the Roberts Court in sharp relief, displaying the look and feel of a new institution, complete with different priorities and dynamics. Chief Justice John Roberts Jr. has been in office for more than two years, but on this day, more than most, the Court seemed determined to show that a page has turned. The reminders were strongest during the oral argument in CBOCS West v. Humphries, an employment discrimination case in which the Court will decide whether employees can sue employers for the reprisals they suffer when they allege racial discrimination in the workplace. Such claims are not explicitly authorized under the civil rights law at issue. Justice Antonin Scalia kept referring to “the bad old days, when we were inferring causes of action all over the place,” such as the one being sought in the case before the Court. He used the phrase “bad old days” often enough that it seemed he was referring to a long-ago point in Supreme Court history, like the century-old Lochner Era. In fact, it was only three years ago that the Court decided in Jackson v. Birmingham Board of Education that retaliation claims were allowed under Title IX, a different law, in a case involving a public school basketball coach who complained about sex discrimination. But Sandra Day O’Connor was on the Court then — she wrote Jackson — and she is not on the Court now. Scalia seemed to be presuming that O’Connor’s successor, Samuel Alito Jr., would vote against such new causes of action. Roberts, too, seemed determined to draw a sharp historical boundary between now and then. Citing the 2001 decision in Alexander v. Sandoval, Roberts also referred to “our new approach to statutory interpretation.” In that decision, written by Scalia, the Court said it was up to Congress, not the Court, to create private causes of action to enforce federal law. The Court seemed so over its past that even when Solicitor General Paul Clement rose to argue on the side of the employee, he seemed to gain little traction. He said the Court had already inferred a cause of action under the law at issue, so he was not asking to “go back to the bad old days.” In momentary confusion over which cases Clement was referring to, Scalia asked, “When do you think the bad old days ended?” Clement, who clerked for Scalia, replied, “The bad old days ended when you got on the Court, Justice Scalia.” Scalia laughed appreciatively. As usual, the outcome of the case may depend on Justice Anthony Kennedy, who seemed during arguments to be searching, unsuccessfully, for a way to justify permitting retaliation claims under the 1866 civil rights law invoked in the case. Signs of the new era also came in the Court’s decisions issued that day. In three key business rulings, the Court continued its trend toward freeing companies from the conflicting regulation of 50 different states in favor of one federal regime. The Court favored federal pre-emption of state laws and court remedies in the areas of medical device regulation, interstate shipping of tobacco, and arbitration of contract disputes. In a broad sense, the Court under the late Chief Justice William Rehnquist often tilted toward states and against federal power. Federal pre-emption cases, like those last week, often bucked that trend, however. In Riegel v. Medtronic issued that day, medical manufacturers, backed by the Bush administration, asked the Court to find that medical devices approved by the Food and Drug Administration should be immune from state law tort actions. The Court agreed, by an 8-1 margin. “It was quite a hat trick,” says Robin Conrad of the National Chamber Litigation Center, the litigating arm of the U.S. Chamber of Commerce, who was in the Court when the decisions came down. “I don’t think I’ve every experienced a day at the Supreme Court like that.” The chamber filed briefs in all three cases on the winning side. Though federal law prevailed in some of the Rehnquist-era pre-emption cases, the rulings were often “murky, with a lot of issues stirring around,” Conrad says. The Court reached a new level of clarity in the Feb. 20 rulings, she says. The Rehnquist-era federalism juggernaut seemed to take an odd turn in another decision issued that day. In Danforth v. Minnesota, the Court ruled 7-2 that state courts can be more generous than the Supreme Court itself in retroactively protecting constitutional rights of defendants. The Court was vindicating state power as the Rehnquist Court often did — though the conservative majority, even then, found ways to favor federal law when states were doing liberal-leaning things like allowing medical marijuana. Justice John Paul Stevens, who wrote Danforth, said the resulting state-by-state discrepancies are “a necessary consequence of a federalist system of government.” So who were the dissenters? Chief Justice Roberts, who counts Rehnquist as his mentor, wrote the dissent and was joined by Kennedy. Invoking Marbury v. Madison, Roberts pulled rank over the states. “State courts are the final arbiters of their own state law; this Court is the final arbiter of federal law,” Roberts wrote. “State courts are therefore bound by our rulings on whether our cases construing federal law are retroactive.” So much for Rehnquist’s states-oriented brand of federalism. There’s a new chief in town.
Tony Mauro can be contacted at [email protected].

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