Sunday, February 14, 2016
In the welter of outpourings of tributes, recollections, and political prognostications that followed the unexpected death of Associate Justice Antonin Scalia, I suspect that his impact on the employment arena will not be front and center. And I also suspect that readers of Workplace Prof generally decry his influence on our field. Nor can I claim not to have offered my fair share (OK, maybe more than my fair share) of criticism, including a recent spoof of his arbitration jurisprudence written with Tim Glynn.
That said, it's easy to forget that Justice Scalia authored some pretty important, and, on balance, pro-plaintiff opinions. Oncale comes to mind, as does Staub v. Proctor Hospital and, most recently, Abercrombie & Fitch. It's true that I've been known to wonder where the hook was when the Justice seemed to be offering a fat, juicy worm to us employment discrimination folk, but that may be just me.
And beyond the contributions of analysis and results of which we approve, the Justice's opinions will be missed for the sheer exuberance (sometimes overexuberance) of his prose. His style was inimitable and, if there is one thing that is almost certain in the future, it is that his replacement's opinions will be less fun to read and engage with.