The Supreme Court went from the momentous to the mundane on Tuesday, but still managed to have some fun along the way.
The court launched its term on Monday with one of the most important cases on its docket: Kiobel v. Royal Dutch Petroleum, touching on issues of human rights and the role of U.S. courts in remedying wrongs around the world.
On Tuesday, the justices heard arguments in Kloeckner v. Solis, a more meat-and-potatoes case that asks the court to decide whether certain decisions of the Merit Systems Protection Board (MSPB) should be appealed to federal district courts or to the U.S. Court of Appeals for the Federal Circuit. The confusion arises in so-called “mixed cases” in which a federal employee claims workplace discrimination as well as other issues in challenging the adverse action.
As minor as that question sounds, the AARP said in previewing the case that “resolution of the issue is of utmost importance to federal employees,” because if they file in the wrong court, they can find their time to appeal has expired – as happened with Carolyn Kloeckner, the Labor Department employee whose case was before the justices.
But there was little discussion of the importance of the issue on Tuesday, as justices and the lawyers before them descended into procedural technicalities and the wording of the pertinent statutes. Even though the court ruled in an MSPB case last term – Elgin v. Department of the Treasury – it seemed like uncharted territory to some justices.
“I’ve probably led a charmed life,” said Justice Anthony Kennedy on Tuesday. “But I’ve never heard of ‘mixed case’ until this matter came before us.” A case is a case, Kennedy said, whether it only raises discrimination claims or includes other issues as well.
To which University of Washington School of Law professor Eric Schnapper replied, “Well, your honor, you have led a charmed life.” Schnapper, who represented Kloeckner, is a veteran advocate in employment cases before the court, and he noted politely that the phrase “mixed case” has been in federal statutes and regulations since the 1970s.
Kennedy’s comment actually was a sign of possible support for Schnapper’s argument, which was that all appeals of mixed cases should be brought in district courts. Justices in general seemed to like that simpler path more than the government’s contention that the proper court depends on certain variables.
Nonetheless, assistant to the solicitor general Sarah Harrington plowed ahead with her argument, but at one point she was speaking so fast and technically that Chief Justice John Roberts Jr. interrupted her. “Could you say that again, a little more slowly?”
Harrington obliged, and Roberts went on to ask another question about the government’s position.
Returning the favor, Harrington paused and said to Roberts. “Say it again? I’m sorry.” As spectators laughed, she added jokingly, “This is going to happen a lot.”
Roberts smiled broadly and said, “more slowly.”
The exchanges continued at a fast pace, with justices after justice seeming to question why the government’s position was so complicated. When Justice Stephen Breyer suggested a less complex approach, Harrington said, “That certainly would be simpler. And if it were up to me to make the rules, maybe that’s what we would decide.” Later she said, “Congress made the determination.”
In rebuttal, Schnapper seemed to seal the deal with a recitation of six reasons why his argument made for a simpler solution to the issue at hand. After his fourth point, Schnapper momentarily lost track of how many points he had made. “Fifth,” said Roberts helpfully. Schnapper took Roberts’ comment as a sign he should sit down, but Roberts said, “No, no, I was just keeping score.”
Tony Mauro can be contacted at firstname.lastname@example.org.