Oral Argument transcript in Mach Mining

The Supreme Court heard oral argument today in Mach Mining v. EEOC, which you might remember from some of our prior posts (also here) and a guest post by Commissioner Feldblum. The transcript has been posted on the Supreme Court's website, and you can read it here. The case was about the EEOC's concilation process and whether that process is judicially reviewable.

I've read through and have some initial impressions. Even though the EEOC is the respondent here, I'm going to start with its arguments because there was significantly more back and forth with the Justices and the EEOC than with the Justices and counsel for the employer, Tom Goldstein. The EEOC has taken an understandable but difficult position, that it cannot file suit unless it has tried and been unable to conciliate on terms it desires. The EEOC asserted that it had a duty to attempt to conciliate, but that essentially, as long as it sent a letter to the employer notifying it that the EEOC had found cause to believe discrimination had occurred in connection with the charge and asking the employer to get in touch, that duty was satisfied. Counsel for the EEOC conceded that this did not seem to be much for judicial review, but argued that even in courts that used a minimal good faith standard, those courts were getting bogged down in mini-trials attempting to assess the quality of the conciliation efforts, something the statute provides no sort of standards for, since the statutory language gives the EEOC has the sole discretion to decide whether any potential terms of resolution are acceptable to it. Counsel for the EEOC was pressed repeatedly to articulate what should be required to ensure that the EEOC actually attempted to conciliate. Chief Justice Roberts, especially was wary of trusting the word of the agency that it had acted in good faith, and Justice Breyer was as well, although to a lesser degree.

With counsel for the employer, the Justices focused primarily on how to frame the issue as a matter of administrative law, since the statute contains no standards for review, nor does it define this conduct as a final agency action. Additionally, the statute requires that the EEOC keep conciliation matters secret and prohibits information about the conciliation process to be used as evidence at trial. 

In terms of Supreme Court bingo, predicting how the Justices will vote, I feel fairly confident that Chief Justice Roberts would vote to overturn the Seventh Circuit. I also feel fairly confident that Justices Ginsburg, Sotomayor, and Kagan are more sympathetic to the EEOC's position but might be willing to create some kind of standard more than what the Seventh Circuit required. Justice Kennedy questioned the employer's counsel pretty heavily, and Justice Breyer and Justice Scalia did the same for both sides.

One last observation. Developing a specialty in Supreme Court litigation will make you one smooth advocate. As a former appellate advocate, I have to say that Tom Goldstein (of Goldstein & Russell also founder of SCOTUSblog)'s argument was incredible to read. 

MM