Employee Rights and Employment Policy Journal

Supreme Court's 2002 Term Employment Law Cases: Is this the Scalia Court?

By
Rafael Gely

Abstract

Erwin Chemerinsky argues that the Supreme Court's constitutional law decisions of the 2002 Term "cannot be explained by any overarching theory or underlying set of interpretative principles." Instead, he argues, "constitutional law is all about value choices made by the Justices." In reviewing the cases decided by the Court during the 2002 Term, this article explores whether Professor Chemerinsky''s assessment of the constitutional jurisprudence of the Supreme Court holds true in the employment law context. Unlike the situation described by Professor Chemerinsky, when it comes to employment law decisions, at least those involving statutory interpretation disputes, the Court often speaks with one voice, frequently reaching unanimous or nearly unanimous opinions. Value choices do not appear to be driving the Justices' behavior in these cases. Instead, employment law decisions can be explained in terms of a "text- and rule-based" approach, most directly linked to Justice Scalia and the conservative block of the Court. "Value choices" are not completely irrelevant in describing the employment law decisions of the Court, however. The unanimity of voice with which the Court speaks in statutory interpretation employment cases appears to be weaker in cases in which the Court is called to apply common law principles, and in constitutional law disputes.