in my opinion, the big winner this term was judicial power. Ironically, the big loser was the Supreme Court itself. The discovery that several of the Justices have been engaging in conduct that would be considered corruption by any other public officials, including the judges of every other court in the United States has fatally damaged the credibility of the institution. I think the corruption scandal will be the legacy of the Roberts court, unless he steps up and introduces ethics reform within the institution.
In terms of judicial power, the Roberts court is proving to be the most activist court in decades. This term alone, the Court exceeded well-recognized limitations on its constitutional power. In 303 Creative Design, LLC v. Elenis, the Court blew through the "case or controversy" requirement, rendering an opinion on the hypothetical actions of a government body in response to the hypothetical actions of a hypothetical business. Under Supreme Court precedent, the case should have been dismissed as "not ripe." The Supreme Court exceeded its jurisdiction and decided it anyway.
A second long-standing limitation on the court's power has been not reaching constitutional issues when they can be decided on another basis. Yet, in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court disregarded this limitation by finding that the affirmative action policies at issue violated both the Civil Rights statutes and the Constitution. Under long standing precedent, the Court should have stopped after finding that the statutes were violated.
As anyone who watched the torrent of litigation after the 2020 presidential election will remember, standing is a very important requirement in order to bring a suit for violation of the constitution. In Nebraska v. Biden, the Court accepted a thin, convoluted argument for standing that it would generally never have accepted in other cases.
This activist practice is consistent with past actions of the Roberts court, including taking jurisdiction over lower court cases on its own in order to issue injunctions and deciding Constitutional issues on its "shadow docket." For all the criticism dished out by conservatives over the years about "activist judges," the Roberts court is proving to be activist on steroids.
One of the significant cases that is not getting as much press as others this term is Groff v. DeJoy, which was a 9-0 decision of the court. It's a great example of judicial gaslighting -- changing the law while telling the citizenry they are doing no such thing. It also expands the sphere of privileges to which religious believers are entitled as contrasted with their nonreligious counterparts.
To appreciate the judicial slight of hand, you have to start with the case that the Court pretended to follow rather than overrule: Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977). Hardison was a TWA employee who underwent a religious conversion, including adopting a strong belief that he could not work on the Sabbath (which he believed started Friday evening). He asked TWA not to be scheduled to work on Saturdays based on his religious convictions.
Unfortunately, Hardison worked in a department that operated 24/7. The employees also had a union contract under which work schedules were decided by seniority. Initially, he worked in a building where he had sufficient seniority to generally avoid working on Saturday. Later on, he requested to move to a second building, where he had no seniority. As most senior employees preferred to have Saturday and Sunday off, Hardison was regularly scheduled for work on Saturdays. Even worse for him, when he changed buildings, he gave up the seniority he had at the first building. So, his problem couldn't be fixed by simply moving back to his original position.
TWA agreed, per its normal policy, that if the union steward could find a more senior employee who was willing to swap schedules, that the two employees could swap schedules. None of the more senior employees wanted to switch. TWA was also willing to require a swap if the union agreed to modify the seniority rights in the contract, but the union would not agree. Hardison proposed that he keep his current work schedule, but not be required to work on the scheduled Saturdays. TWA declined. When Hardison refused to show up for work on Saturday, TWA fired him.
Hardison sued TWA for violation of Title VII of the Civil Rights Act, claiming discrimination on the basis of religion. This was a somewhat unusual case because Hardison had been treated the same as every other TWA employee. Most discrimination cases had been based on claims of unequal treatment when compared with other employees. So, the Court had to start pretty much from scratch, starting with the language of the statute:
In 1972, Congress added the following clarification to the statute:(a) It shall be an unlawful employment practice for an employer -- "
"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin."
So, under the statute, TWA was reasonably required to accommodate Hardison's religious-based unwillingness to work on Saturdays unless doing so would result in "undue hardship on the conduct of the employer's business."The term 'religion' includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee's or prospective employee's religious observance or practice without undue hardship on the conduct of the employer's business.
The Supreme Court ruled in favor of TWA. Here are the key parts of its holding:
1. The seniority system itself was a reasonable accommodation to employees who had religious objections to working on specific days of the week because the system was neutral in terms of religion. It had also attempted to accommodate Hardison by allowing him to swap schedules with another employee, but it could not do so without violating its contract with the union.
2. Depriving other employees of their preferred work schedules based on Hardison's religious beliefs would constitute discrimination on the basis of religion. The same is true of depriving them of their contractual rights under the union contract.
3. Seniority systems are given special treatment under the Civil Rights statute, which states that bona fide applications of seniority or merit systems to the terms and conditions of employment do not violate the law unless they were put in place with an intent to discriminate.
4. Requiring TWA to bear more than a "de minimus" cost to give Hardison Saturday's off IS an undue burden.
5. An employer cannot be required to discriminate against some employees in order to give other employees the benefit of enjoying their sabbath.
The opinion is pretty clear: First, imposing more than a de minimus cost on an employer in order to accommodate an employee's religious belief is an undue burden under the statute. Second, the statute doesn't require an employer to discriminate in favor of an employee and against other employees on the basis of religion.By suggesting that TWA should incur certain costs in order to give Hardison Saturdays off, the Court of Appeals would, in effect, require TWA to finance an additional Saturday off and then to choose the employee who will enjoy it on the basis of his religious beliefs. While incurring extra costs to secure a replacement for Hardison might remove the necessity of compelling another employee to work involuntarily in Hardison's place, it would not change the fact that the privilege of having Saturdays off would be allocated according to religious beliefs.
You don't have to take my word for it: read it for yourself. https://supreme.justia.com/cases/federal/us/432/63/#T15
With that background, we can turn to Groff, who is an evangelical Christian. He became employed by the Postal Service at a time when very little Sunday work was required in general. That changed when the Postal Service contracted with Amazon to do some of its Sunday deliveries. He changed to a rural station to which the Amazon arrangement did not apply. However, after a time, that station also began to do Sunday deliveries for Amazon.
Groff refused to work on Sundays. Other employees had to work his Sunday shifts for him. They were not happy, and one filed an employment grievance over being forced to work Groff's Sunday shifts. Meanwhile, Groff had been subjected to progressive discipliner. He finally resigned.
Groff sued for violation of title VII. The Supreme Court's opinion rummages through footnotes and cherry picks bits and pieces to "courtsplain" that the opinion in Hardison doesn't really say what it clearly says. It replaces "more than de minimus costs" with "substantial" "costs" or "expenditures." Notice how each word is quoted separately? That's because they are cherry picked and do not appear together in anything resembling a holding in Hardin. That's part of the sleight of hand. How much is a "substantial" cost? I don't know, and the court doesn't say. But its ciearly bigger than de minimus.
But that's not the biggest part of the trick. Remember the second holding of Hardin: the law doesn't require an employer to discriminate against people who aren't members of an employee's religion when deciding who has to work on the weekends? While pretending not to overrule or alter Hardin, the Court makes that part of the holding disappear. Well, that's an understatement. It actually holds the opposite. Whatever the conduct of an employer's business is, the terms and conditions of its employees' employment is not part of it.
According to the majority opinion in Groff, an employer can be required to grant special privileges to religious people at the expense of employees who do not belong to that religion. If you've been working for your employer for 20 years and don't have a union or other written contract, the fact that your employer has always allocated who has to work weekends based on seniority means nothing as of last week. That 20 year-old evangelical who was hired last week does not have to work on Sundays, even if that means you have to cover their shifts.Specifically, a coworker’s dislike of “religious prac- tice and expression in the workplace” or “the mere fact [of] an accommodation” is not “cognizable to factor into the un- due hardship inquiry.” Id., at 89–90. To the extent that this was not previously clear, we agree. An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.” If bias or hostility to a religious practice or a religious accommodation pro- vided a defense to a reasonable accommodation claim, Title VII would be at war with itself.
This is not an opinion that simply follows what the court "really" held in its last case on the issue. It's a pretty big change in the interpretation of Civil Rights law. Rather than the law being applied in a way that doesn't disadvantage religious folks, it requires granting special privileges to people on the basis of their religious beliefs. And, given that keeping the sabbath day holy is one of the big 10, that's lots of people of the book who can lay claim to a religious belief that they should not be forced to work on the sabbath.
Now, we'll have to see how this all works out. Maybe "substantial cost" is going to end up being lots closer to "more than de minimus cost" than one might think just by reading the opinion. Maybe we'll be seeing more written employment contracts, including union contracts. Who knows?
The most interesting question for me is: do evangelical religious folks now have a right to preach to their fellow employees?
My big objection is to making this kind of significant change, while pretending to change nothing. (Note, the concurring opinion addresses the issue of considering the impact on other employees, so that's something, I guess.)
