The US Supreme Court delivered six decisions on Thursday, June 5. Among them were two widely followed cases – one on “reverse discrimination” and another regarding Mexico’s lawsuit against seven firearms manufacturers in the US.
To better understand the ramifications of the rulings, we turn to Liberty Nation News Legal Affairs Editor Scott D. Cosenza, Esq., for answers.
Discrimination Is Discrimination – Even in ‘Reverse’
In 2019, Marlean Ames – a heterosexual white woman – applied for a management position at the Ohio Department of Youth Services, where she had worked her way up from executive secretary to program administrator. She was passed over for the promotion in favor of a lesbian. Then, a few days later, Ames was demoted back down to her secretarial position – taking a significant pay cut in the process. Meanwhile, the department hired a gay man to fill her previous administrator role.
Ames sued, arguing that she was illegally discriminated against because of her sexual orientation. The District Court tossed her case because of an extra burden it imposed on members of the “majority.” That is, if Ms. Ames were a lesbian suing because she had been discriminated against and replaced with heterosexuals, her case would go forward. But because she was a member of the heterosexual “majority,” she would first have to prove “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
The Circuit Court upheld that decision but was split over whether it was constitutional to make it more difficult for “majority” plaintiffs to sue. That’s the question taken up by the Supreme Court – and all nine justices agreed that discrimination is discrimination, whether the victim belongs to a “minority” or not.
James Fite: Are you surprised at the outcome?
Scott D. Cosenza, Esq.: Yes, I expected one or more of the Court’s left bloc to somehow justify a separate standard for preferred minorities. It’s a great thing to see all the justices in agreement when the law is as clear as it is here. Title VII of the Civil Rights Act of 1964 prohibits discrimination on several bases, but never only for minority populations. Anti-discrimination measures are increasingly becoming less about discriminating for favored groups.
James: How did the extra requirement for proving “background circumstances” get started in the first place?
Scott: In his concurring opinion, Justice Clarence Thomas said the rule was created by “D.C. Circuit judges in Parker v. Baltimore & Ohio Railroad,” a 1981 case. “Applying their own ‘common sense,’ these judges determined that extra evidence is required to prove discrimination when a Title VII plaintiff is white.”
As Thomas discussed – and as the Court’s opinion by Justice Ketanji Brown Jackson makes clear – the law itself allows for no such variances. Jackson wrote, “By establishing the same protections for every ‘individual’ – without regard to that individual’s membership in a minority or majority group – Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”
James: Justice Thomas wrote a concurring opinion signed onto by Justice Neil Gorsuch that was longer than the opinion of the Court. What did he focus on and why?
Scott: Thomas took to his pen to criticize the notion of judge-made rules and legal frameworks. He discussed the “background circumstances” test and the challenges courts had in implementing it, saying: “Most courts appear to have sidestepped these difficulties by abandoning the search for neutral principles and instead assuming that the ‘background circumstances’ rule applies only to white and male plaintiffs.” Thomas lays bare the notion that this was anything other than discrimination against disfavored majorities.
James: Justice Thomas said something along the lines that liberals would seemingly celebrate, didn’t he?
Scott: Oh yes. Justice Thomas went on to criticize another rule made-up by judges concerning discrimination cases and how they were unnecessarily restrictive. He said the federal courts’ use of the McDonnell Douglas framework to decide summary judgment challenges in discrimination cases is too burdensome on plaintiffs. I doubt we’ll see a long think piece in The Atlantic about how Justice Thomas is pushing the envelope on discrimination cases, but he did just that – and as the statute requires, I hasten to add. Thomas is against judge-made law in all its forms.
James: He explained, “Judge-made doctrines have a tendency to distort the underlying statutory text, impose unnecessary burdens on litigants, and create confusion for courts.” What’s next for Ms. Ames?
Scott: Now she gets to go to court and try to prove her case. She didn’t win against Ohio for discrimination; she won the right to sue them for it.
Supreme Court Says ‘No’ to Mexico
The Mexican government wanted to sue Smith & Wesson and a handful of other firearm manufacturers because cartel members and other criminals in Mexico use weapons illegally. Our neighbor south of the border argued that the American companies knew what the guns were being used for and willingly “aided and abetted” these criminals.
The Supreme Court, however, disagreed, ruling unanimously that Mexico was unsuccessful in showing the actions of the companies constituted aiding and abetting. The court concluded that the country’s $10 billion liability suit failed and is prohibited by the Protection of Lawful Commerce in Arms Act (PLCAA).
James: This seems like another case where the outcome is no surprise, but the vote count is. Your coverage of the case at oral argument singled out Justice Sonia Sotomayor as sympathetic to the plaintiffs. Are you surprised she joined the rest in ruling against Mexico?
Scott: Justice Sotomayor equated correlation with causation in her remarks at oral argument. Her statements, coupled with her vote in the case, caution court watchers against presupposing any justice’s position on any given Sunday, to mix a metaphor.
James: Justice Elena Kagan wrote for the unanimous Court. Are there any surprises in her opinion?
Scott: It’s pretty straightforward. Mexico needed to demonstrate that the gun companies “aided and abetted” criminal gun dealers. Quoting the Court: “To aid and abet a crime, a person must take an affirmative act in furtherance of the offense and intend to facilitate its commission.” That is not a low hurdle. Mexico didn’t really allege any act the gun companies performed that triggered liability under the statute.
James: That’s what Justice Jackson’s concurrence focused on.
Scott: Yes – hers read to me like a how-to manual for future litigation in this area. She wrote: “At bottom, then, Mexico merely faults the industry writ large for engaging in practices that legislatures and voters have declined to prohibit.” Jackson specified that the complaint was deficient for not identifying specific statutory breaches or specific dealers who were the main bad actors. Her writings indicate she would find a suit allowable if it did cover those bases.
Justice Thomas wrote his concurring opinion anticipating future litigation in this area as well:
“In future cases, courts should more fully examine the meaning of ‘violation’ under the PLCAA. It seems to me that the PLCAA at least arguably requires not only a plausible allegation that a defendant has committed a predicate violation, but also an earlier finding of guilt or liability in an adjudication regarding the “violation.” Allowing plaintiffs to proffer mere allegations of a predicate violation would force many defendants in PLCAA litigation to litigate their criminal guilt in a civil proceeding, without the full panoply of protections that we otherwise afford to criminal defendants”
