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The Supreme Court struggled Wednesday to sort out an important Americans with Disabilities Act case brought by an Arizona man who wanted his job back after being terminated years earlier for alcohol and drug abuse. Substance abuse itself is not a disability under the law, but workplace discrimination because of past abuse is covered. In Raytheon v. Hernandez, No. 02-749, the company says it was justified in not rehiring Joel Hernandez because of an across-the-board policy against rehiring anyone who was once terminated for cause. The Bush administration entered the case on the side of the Raytheon Co. The case has “extraordinary implications,” Raytheon lawyer Carter Phillips of Sidley Austin Brown & Wood told the Court, for “thousands of companies” with similar no-rehire rules. But much of the argument focused on procedural problems and factual uncertainties about Hernandez’s case, which had been dismissed summarily by a district judge. The 9th U.S. Circuit Court of Appeals reversed in a decision written by Judge Stephen Reinhardt, finding that Hernandez was entitled to a trial and had made a prima facie case of disability discrimination. The justices appeared troubled by the appeals ruling, which assumed certain facts about the case that had never been proved. Some justices appeared ready to dismiss the case because of flaws in the lower court ruling. Deputy Solicitor General Paul Clement said the record was adequate for the district judge to have dismissed the complaint summarily. Phoenix lawyer Stephen Montoya, arguing on behalf of Hernandez, suggested the case would have to be remanded for factual findings, but that the Court could still agree with the 9th Circuit that Raytheon’s policy was discriminatory. The outcome of the case was further complicated by the fact that two justices recused themselves. Justice Stephen Breyer, who owns between $50,000 and $100,000 in Raytheon stock according to his financial disclosure form, made his recusal known from the earliest stages of the case. But Justice David Souter, who participated in earlier motions in the case, was surprisingly absent from the bench Wednesday — the first official indication that he, too, was recusing. Souter, like most other justices, does not reveal his reasons for recusal, and does not appear to own any stock that would explain his action. Phillips said the absence of two justices would not make much difference in the outcome — except that it eliminates the earlier possibility of a Breyer-generated 4-4 tie, which would have left the unfavorable 9th Circuit decision standing. Phillips’ argument was marred by a misstep that has afflicted other notable high court advocates in the past: He addressed Justice Ruth Bader Ginsburg as “Justice O’Connor.” It took a broad smile from Ginsburg and nervous laughter from the audience before Phillips realized his error. Phillips recovered quickly and later in his argument jokingly said he hoped he’d gotten the names right when he addressed one of the two female justices again. In his blunder, Phillips joined the ranks of Harvard Law School professor Laurence Tribe, former acting Solicitor General Walter Dellinger, and the late Bruce Ennis, all of whom made the same curious mix-up. Justice John Paul Stevens, who made the same mistake in a speech a few years ago, said at the time, “It’s amazing how often an advocate before the Court will call one by the other’s name. It’s always an embarrassing moment.” Two years ago, Justice Ruth Bader Ginsburg celebrated the fact that an entire term had gone by without any lawyer at oral argument getting her mixed up with Justice Sandra Day O’Connor. After Wednesday’s argument, Phillips expressed regret that he had ended the error-free run among high court advocates. “I’ve argued 37 cases without doing it, and the 38th got me.”

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