In Wake of Gorsuch Debut, a Look at How Justices Voted on Job Bias

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By Patrick Dorrian and Jasmine Ye Han

No, this isn’t a story about Justice Neil Gorsuch’s voting record in employment discrimination cases.

Instead, it’s a look at the record in job bias cases of the court Gorsuch just joined. The hope is that the numbers presented here provide some insight into whether Gorsuch’s confirmation signals the painful reckoning for worker rights that some have foretold. Or is it just the politics surrounding Supreme Court nominees carrying us away?

The data reflected in the graphics that follow show the outcomes in employment discrimination cases decided by the high court from Justice Antonin Scalia’s ascent in 1986 to the present. We found 98 such cases decided during that period, most but not all of which were decided clearly in favor of either the worker or worker rights, or the employer.

Pro-worker and pro-employer voting numbers for each justice were calculated from those clear-cut cases as a percentage of all the cases he or she participated in. Of the 18 justices who sat on the court during the covered period, Scalia participated in the most job bias cases—96 of the 98—while Justice Lewis Powell participated in the least—8.

The highlights include:

  •  Justices William Rehnquist, Clarence Thomas, Scalia, Byron White and John Roberts top the list of most pro-employer voters, each coming in at 40 percent or higher in the clear-cut cases they participated in.
  •  Justices Thurgood Marshall, Harry Blackmun, Sonia Sotomayor and Stephen Breyer had the most pro-worker votes, each at a percentage of 60 or higher in the clear-cut cases they participated in.
  •  Justices Roberts, Sandra Day O’Connor, Anthony Kennedy and David Souter led the way in voting with the court majority, each at over 80 percent of all the job bias cases they participated in.
  •  The justices nominated by Republican presidents show less of a gap in their votes for workers versus employers—40 percent versus 34 percent—than their Democrat-nominated colleagues—58 percent pro-worker versus 19 percent pro-employer.

Three Graphics Help Tell Story

What we came up with are three graphics illustrating the individual justices’ voting records in the clear-cut job bias cases in which they participated, aggregate breakdowns based on the party-affiliation of the nominating president and the known or perceived political leanings of the justices , and aggregate majority voting numbers based on the same two groupings. While the pro-worker and pro-employer voting numbers for each justice were calculated just from the clear-cut cases, majority voting figures were calculated based on all job bias cases during the Scalia era that a justice participated in, even the mixed-results cases.

Justices John Paul Stevens, White, Blackmun and Powell weren’t included in the political leanings calculations either because they weren’t viewed as significantly liberal or conservative or their political leanings didn’t seem to fit modern definitions. That left Justices William Brennan, Marshall, Souter, Ruth Bader Ginsburg, Breyer, Sotomayor and Elena Kagan as the court’s known or perceived liberal justices, and Justices Rehnquist, O’Connor, Scalia, Kennedy, Thomas, Roberts and Samuel Alito as the known or perceived conservatives.

The party-affiliation of the nominating president breakdown: Marshall, White, Breyer, Ginsburg, Sotomayor and Kagan were Democrat nominees; and Brennan, Blackmun, Rehnquist, Powell, Stevens, O’Connor, Scalia, Kennedy, Souter, Thomas, Roberts and Alito were nominated by Republicans.

From Scalia Forward

We picked Scalia’s September 1986 start date as a logical historical cutoff because of the sheer volume of employment discrimination decisions by the court since the advent of modern worker civil rights laws in 1964 and because it’s Scalia that Gorsuch is replacing.

This analysis focuses only on the clear-cut outcomes and doesn’t include separate figures for cases that arguably gave at least a little to each side. The reason for this is simplicity. Who really won or lost those not-so-clear-cut cases, in the near and long terms, could be the subject of never-ending debate. Of course, any good advocate will argue (and argue and argue) that this “simplified” approach presents an incomplete picture, and that dissents and mixed decisions sometimes do as much or more to shape the law as clear-cut rulings do.

That’s undoubtedly true, just as there are other clues among the cases reviewed as to how Justice Gorsuch might influence the court’s employment discrimination jurisprudence. For example, the dozen or so cases clearly decided for the employer by a 5-4 vote in which Scalia joined the majority may signal that a more liberal leaning justice than Scalia (or Gorsuch) could have tilted the balance, or would tilt it in future closely decided cases.

Forecasting Votes Is Difficult Task

But history, as told by the numbers, shows there are no givens when it comes to forecasting the views and votes of Supreme Court nominees, at least in the job bias context.

Justice White, for example, was nominated by President John F. Kennedy but established a voting record in the clear-cut employment discrimination rulings he participated in that aligns more closely with the conservative justices analyzed than with the presumed or known liberals.

Justice Blackmun, on the other hand, was a President Richard M. Nixon pick, yet he was the second most likely to side with workers in the clear-cut job bias decisions reviewed by Bloomberg BNA for this analysis.

More recently, Justice Souter, who was tapped by President George H.W. Bush, compiled a voting record in job bias cases that was somewhat more consistent with the overall percentages for justices nominated by Democrats than with Republican nominees.

What Is and Isn’t in the Numbers?

We excluded cases involving political discrimination or First Amendment retaliation claims that weren’t founded on one or more of the protected classes covered by federal job bias laws—sex, race, age, disability, national origin, religion, and color. Family and Medical Leave Act cases also weren’t included.

Finally, we didn’t count any justice’s vote in a given case unless it was cleanly in the majority or dissent. We considered reporting alternative numbers for the pro-worker and pro-employer percentages that included votes concurring in the court’s judgment but not joining the majority opinion, but those numbers typically shifted the percentages just slightly, if at all.

Of the 98 cases reviewed, we declared 19 mixed results. That left 79 cases with clear outcomes, with wins for workers in 44 and for employers in the other 35. We concede, of course, that one can never completely eliminate the subjective element when declaring winners and losers in a legal dispute.

There likely aren’t many surprises here for close watchers of the court or for employment discrimination law specialists. But we hope these numbers tell at least part of the story and show that maybe all the politics—which the public seems to be growing increasingly weary of—isn’t necessary when the next nomination and confirmation rolls around. And that may come sooner rather than later.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com and Jasmine Ye Han at yhan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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