Soapbox

In evaluating Supreme Court justices, be wary of stereotypes

The justices of the U.S. Supreme Court in a group portrait at the Supreme Court Building in Washington. Seated from left, are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing, from left: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito, and Associate Justice Elena Kagan.
The justices of the U.S. Supreme Court in a group portrait at the Supreme Court Building in Washington. Seated from left, are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg. Standing, from left: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito, and Associate Justice Elena Kagan. Associated Press file

When the U.S. Supreme Court announced its recent ruling in EEOC v. Abercrombie & Fitch Stores Inc., involving the right of employees to wear headscarves, the court struck a blow for religious liberties in the workplace. In addition, the decision demonstrated how popular stereotypes about the nine members of the U.S. Supreme Court are inaccurate.

You know the boilerplate: the Supreme Court is split between four archconservative right-wingers and four ultra-liberal left-wingers. Between the two factions stands Sacramento’s Anthony Kennedy, a Machiavellian moderate whose “swing vote” decides which side achieves a 5-4 victory.

These stereotypes result from the media’s fixation with a handful of high-stakes showdowns. Among these are Citizens United, which concerned campaign money from corporations, and cases involving the Affordable Care Act.

If you look only at these few decisions, the polarized stereotype of the court makes sense.

But data show otherwise. The respected website Scotusblog keeps statistics on Supreme Court decisions. Scotusblog compares the votes of each justice with those of his or her eight colleagues.

The court has ruled on almost all of the 75 cases that are calendared for its 2014-15 term. Far from being an acrimonious bunch, the justices agree with one another more than they disagree. Ideological splits are the exception, not the rule.

For example, take Chief Justice John Roberts, a pillar of the conservative wing, and Ruth Bader Ginsburg, a staunch liberal. They voted the same way 81 percent of the time. Samuel Alito on the right and Stephen Breyer on the left agreed in 76 percent of the decisions. Antonin Scalia, rock star for conservatives, and Elena Kagan, former Harvard Law School dean and liberal icon? They were in agreement 75 percent of the time.

The lowest rate of agreement was between Sonia Sotomayor, a liberal, and Clarence Thomas, a conservative. Yet Sotomayor and Thomas voted the same way in 56 percent of the decisions, meaning that the court’s most divisive pairing still agreed more than half the time.

That takes us back to the court’s decision in Abercrombie.

In 2008, Oklahoma teenager Samantha Elauf applied for a job at an Abercrombie & Fitch store. Elauf, a devout Muslim, wears a headscarf. Abercrombie has a dress code that bans employees from wearing “caps.” Abercrombie didn’t hire Elauf, and a company employee indicated that the rejection was attributable to the headscarf. Elauf went to the Equal Employment Opportunity Commission, which sued on her behalf.

The court rejected Abercrombie’s argument that Elauf cannot show that she was the victim of discrimination unless she can demonstrate that the employer had “actual knowledge” that she was wearing the scarf for religious reasons and would need the store to accommodate her. Instead, the court ruled that Elauf only has to show that her need for Abercrombie to accommodate her religious beliefs was a “motivating factor” in its decision to reject her. Scalia wrote the 8-1 majority decision.

The sole dissenting vote? It was cast by Thomas, who, according to the stereotypes, is Scalia’s ideological twin. Thomas, a former EEOC chairman, wrote a thoughtful discourse that questioned whether Abercrombie was merely applying a neutral policy that prohibited head coverings for everyone.

Smart employers shun religious-based stereotypes, such as headscarves, in their hiring and promotion practices. In a similar vein, we all should avoid putting judges into ideological pigeonholes just to satisfy our personal political templates.

David Graulich of Fair Oaks is an employment lawyer who represents employees in workplace disputes.

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