Judicial Activism Redefined

Second careers for lawyers is a growth industry. It's largely about job dissatisfaction. I'm not the only lawyer who signed-up, believing in good faith that the law is a noble profession and that we are indeed a nation of laws. Over the years that faith was eroded by being repeatedly battered to the point where I came to see it all as a great cosmic scam.

What made me such a cynic? I suppose it watching judges up close and personal trampling on the laws, rules and procedures they are sworn to uphold as the front line in the war against injustice.

What am I talking about? Well, take for instance the case of Plessy v. Ferguson. That's the 1898 U.S. Supreme Court case that institutionalized segregated schools on the theory that "separate" could be "equal."

Anyone with half a brain knew that by definition "separate" can never be "equal." That didn't stop the 1898 Supremes. It wasn't until 1954, fifty-six years, two generations and two world wars later, that the Supreme Court (which is to say the country) overruled the travesty and insult to our collective intelligence and integrity that was Plessy.

The problem s that these rulings just can't pass the smell test. When no one with any intelligence can make sense of one of these out-of-control decisions you just know they're pure b.s.

Such was the case in the California Marriage cases after Prop 8 when the California Supreme Court ruled that domestic partnerships are the functional equivalent of marriage. So fifty-five years after the U.S. Supreme Court reversed the breathtakingly disingenuous Plessy the California Supreme Court revived it (and the genre) in a different context -- sex rather than race discrimination.

Now the Supremes - The Republican Supremes (the right-wing Republican poster children) - are at it again. With the addition of Bush appointees Roberts and Alito (hyped by the right-wing's poster children as anti-"judicial activist" judges), the Republican majority created a gloss on the Equal Protection Amendment that no one I know could have dreamt-up.

Section 1 of the 14th Amendment to the U.S. Constitution provides, “nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

In 2000, the Court came up with the 'class-of-one' theory. It says that the constitutional guarantee of equal treatment under the law applies to every “person.” Therefore, individuals who have been treated unequally by the government can raise an equal protection claim, even if they only represent a class-of-one. The case was Village of Willowbrook v. Olech, 528 U.S. 562 (2000).

Then, in 2008, the Republican majority came up with the idea that the 'class-of-one' theory doesn't apply to public employees. The case is Engquist v. Oregon Department of Agriculture, 128 S.Ct. 2146 (2008). One commentator wrote: "Therefore, no matter how arbitrary the government’s decision might appear to be, a public employee may not assert a “class of one” claim, based on the theory that government personnel decision making is inherently highly subjective and discretionary." In other words, public employees' equal protection rights must yield to what the Supremes now claim is a government employer's greater right not to be burdened by such lawsuits because there might be too many of them (lawsuits). If government had to worry about being sued for discrimination by employees they'd fucked that would cause the wheels of government to come to a screeching, grinding halt. Well, duh!! In effect, the Court held that the only public employee who may sue his or her employer must be a member of a "protected class" (age, sex, religion, national origin), even though the 14th Amendment doesn't say so or anything like that. Really. I'm not making this up.

Have you ever heard such nonsense? But it's the law now. A majority of the Supremes said so. And then lawyers (and lower court judges) have to join in the dance trying to reconcile these patently bullshit decisions with plain old common sense. Maybe they should write opinions that would have the effect of dissuading malefactoring bosses from breaking the law in the first place, but noooo. Instead, they write decisions that legitimizes what should be illegal discrimination.

Unless you're an employment discrimination lawyer, I doubt you would have heard about the "class of one" doctrine or the 2008 judicial narrowing it. I didn't. I know about it only because I'm interested in a sex/gender discrimination case pending in the Atlanta, Georgia U.S. Federal District Court. Vandy Elizabeth Glenn is a transgendered woman who sued the Georgia legislature (which fired her solely because she announced her plan to transition on-the-job) just one month after Chief Justice Roberts delivered the Engquist decision.

Can there be any clearer case of judicial activism? The Republican Right must really be desperate.

The Georgia legislature moved to dismiss Vandy's complaint, asserting it's a "class of one" case. Fortunately, the trial judge ruled against them. He's Richard W. Story - a local Georgia boy, and a Clinton appointee. Both sides have now moved for summary judgment. Let's hope this one goes the same way as Judge Robertson's ruled for Diane Schroer last year in her case against the U.S. Library of Congress. But wouldn't you love to see it go to trial? Then we could enjoy the spectacle of Vandy's boss, Sewell R. Brumby (what a name - right out of Dickens!) trying to explain that he wasn't engaging in illegal discrimination when he told her transition and presenting as a woman was "immoral" and would make her co-workers "uncomfortable."