The U.S. Supreme Court on November 30 failed to tip its hand on what it will do with 10 petitions concerning same-sex marriage.
In anticipation of some action, gay rights and other organizations had geared up for quick comments on the justices’ choice of which challenge would be the best vehicle to tackle the major civil rights issue. Scholars and others predict the most likely case will be a challenge to the federal Defense of Marriage Act.
The justices did add two new cases to their argument calendar that day: the closely watched Association for Molecular Pathology v. Myriad Genetics Inc., a challenge to Myriad’s patents on two genes associated with breast and ovarian cancer, and Mutual Pharmaceutical v. Bartlett, a case involving design defect claims and generic drug pre-emption.
Below are some other high court highlights from last week:
A RARE SCOLDING
Chief Justice John Roberts Jr. scolded a Justice Department lawyer in open court on November 27, accusing the solicitor general’s office of being less than candid in a brief describing the government’s change in position on an issue before the court.
The rare episode seemed to be a deliberate effort by Roberts to send a message to the solicitor general’s office that it may be giving too short shrift to the tradition of continuity between administrations that the court is accustomed to seeing. Solicitor General Donald Verrilli Jr. was in the courtroom and saw the exchange.
During routine arguments in an Employee Retirement Income Security Act health insurance case titled US Airways v. McCutchen, Roberts zeroed in on footnote 9 in the government’s brief, which described a position taken in previous ERISA cases by Bush administration Secretary of Labor Elaine Chao and then stated that “upon further reflection…the Secretary is now of [a different] view.”
Roberts said angrily, “That is not the reason. It wasn’t further reflection. We have a new secretary under a new administration, right?” He was referring to current Labor Secretary Hilda Solis.
Joseph Palmore, the assistant to the solicitor general arguing the case, agreed. Roberts continued, “It would be more candid for your office to tell us when there is a change in position that it’s not based on further reflection of the secretary.…It’s not the same person. You cite the prior secretary by name, and then you say, the secretary is now of the view. I found that a little disingenuous.”
WHO’S A SUPERVISOR?
The court on November 26 was urged to adopt an expansive definition of who qualifies as a “supervisor” for holding employers liable for harassing conduct by an employee.
The justices heard arguments in Vance v. Ball State University, a case involving the alleged racial harassment of Maetta Vance, an African-American catering assistant at the university, by a white employee in the same division.
In Vance’s case, the U.S. Court of Appeals for the Seventh Circuit adopted a restrictive definition of supervisor — someone with authority to make tangible employment decisions, such as hiring and firing. However, the Second, Fourth and Ninth circuits apply a broader definition of a supervisor as an employee who has authority to undertake or recommend employment actions or authority to direct the victim’s daily activities.
Representing Vance, Daniel Ortiz of the University of Virginia School of Law favored the Second Circuit’s definition, which asks whether authority granted the harasser “enabled or materially augmented” the harasser’s ability to create a hostile work environment.
Deputy Solicitor General Sri Srinivasan urged the court to adopt the approach that recognizes that an individual with authority to direct daily work activities qualifies as a supervisor. But Roberts pushed back, saying that approach creates a “broad continuum in which we’re going to have countless cases.”
The university’s counsel, Gregory Garre of Latham & Watkins, said the court should affirm the Seventh Circuit decision, although “we don’t think the Seventh Circuit test is the complete answer.”
THE RETURN OF KATYAL
Former Acting Solicitor General Neal Katyal returned to the Supreme Court lectern last week for the first time since entering private practice at Hogan Lovells in September 2011.
On November 27, he represented US Airways in US Airways v. McCutchen. And on December 3 he argues on behalf of the plaintiff in a Fair Labor Standards Act dispute, Genesis HealthCare Corp. v. Symczyk.
The last time Katyal stood before the justices was in April 2011 as acting solicitor general. Katyal acknowledged that “sure, argument preparation is different now.” One change, he said, involved a new online music service. “Because I love preparing for argument to rock music, the arrival of Spotify, which allows me to listen to oodles of loud new music, has made things much more pleasant.”
LATEST ARBITRATION SLAP DOWN
Outside Oklahoma, an unsigned five-page opinion released by the U.S. Supreme Court on November 26 drew little general attention.
But in the field of arbitration law, the decision in Nitro-Lift Technologies v. Howard represented a significant next step in a high court trend: slapping down state courts that get in the way of the Supreme Court’s embrace of arbitration agreements.
Twice before in the past year, the Supreme Court issued similar per curiam opinions — written without full briefing or oral argument — rejecting state court determinations in arbitration cases. The other decisions were Marmet Health Care Center v. Brown and KPMG v. Cocchi.
The recent per curiam decision struck down an Oklahoma Supreme Court ruling that, in effect, placed state law ahead of the Federal Arbitration Act. Nitro-Lift, an oil industry services company, demanded to go into arbitration when two former employees went to work for competitors. The company invoked an arbitration clause in their employment contract, which also barred working for competitors. The employees instead filed suit in state court. The Oklahoma high court nullified the noncompetition agreement as contrary to state public policy.
But the U.S. Supreme Court, invoking the U.S. Constitution, said, “The Oklahoma Supreme Court must abide by the FAA, which is ‘the supreme law of the land’…and by the opinions of this court interpreting that law.”