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February 20, 2008

Cracker Barrel v. Humphries Transcript

The oral argument transcript is here.  I'm about to read it.

Interesting stuff on the "which body of law applies question!"  Here's Chief Justice Roberts:

CHIEF JUSTICE ROBERTS: We do have those recent cases, but we also have the Sullivan case interpreting -- interpreting 1982, which arose under the prior approach to these questions. And my question for you is: Under principles of stare decisis, which body do we follow, the earlier case interpreting 1982 under the more freewheeling approach to statutory interpretation or this later body of law that says we're not going to do that any more?

And Justice Ginsburg:

Wouldn't Congress, when it revised 1981 in 1991 been aware of Sullivan and expect this Court to interpret those twin statutes the same way?

And Scalia on the impact of legislative reports:

MS. HYNDMAN: Well, the Court has already implied a cause of action and the question is whether -

JUSTICE KENNEDY: I understand that, and -and there certainly is a cause of action as to all the terms in the contract, but you want to add -- for me to add a new term. You can't use the existing terms to say

JUSTICE SCALIA: It could have been a teenager who wrote the report.

Justice Kennedy, questioning counsel for the plaintiff below repeatedly asked where there was language in the statute authorizing a retaliation claim, and didn't like the plaintiff's answers to his question. Scalia thought that someone who is fired in retaliation for complaining about racial harassment is not fired on the basis of race.

Finally, here's the start of the Solicitor General's argument, which continues a theme discussed in a post below, about whether the "old" approach to implied causes of action, or the new narrower one applies.  This is the Solicitor General beginning his talk:

This Court has already inferred a private cause of action under section 1981. So the question before the Court now is simply the scope of the basic guarantee in section 1981 and particularly whether it prohibits retaliation against someone who exercised their undoubted right to complain about racial discrimination in a contractual process.

JUSTICE SCALIA: It's a little more complicated than that. We inferred that cause of action in the bad old days, when we were inferring causes of action all over the place.

Now, the position the Government takes here is that we should infer this new cause of action to assist the one that's already on the books. Is the Government going to be consistent in this position? And you want us to in the future go back to our prior practice of readily inferring causes of action that are not set forth in the -- in the text of this statute?

Is the Government willing to live with that?

GENERAL CLEMENT: No, Justice Scalia, we're not asking to you to go back to the bad old days. But I think it's important to recognize that we are simply asking you to interpret the scope of the cause of action you've already inferred. And I think that's consistent

JUSTICE SCALIA: Patterson was still the bad old days. When do you think the bad old days ended?


GENERAL CLEMENT: Patterson was 1989. I don't think anybody thinks Patterson was the bad old days.

JUSTICE SCALIA: Oh, I'm sorry. I was thinking of Sullivan.

GENERAL CLEMENT: The bad old days ended when you got on the Court, Mr. Justice Scalia.


When I was writing our statutory construction book, I focused right on this issue, and so I find this fascinating as all heck. Yes, I'm a geek.

February 20, 2008 in Current Affairs | Permalink


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