A Pro-Employee Supreme Court?: The Retaliation Decisions

36 Pages Posted: 29 Jan 2009

See all articles by Michael J. Zimmer

Michael J. Zimmer

Loyola University Chicago School of Law

Date Written: December 15, 2008

Abstract

In its three years, the Roberts Supreme Court has decided three employee retaliation cases. In all three, the employee won. So, the question is whether the Supreme Court is pro-employee, at least in retaliation cases. My answer is yes, but not in the sense of "liberal" or "conservative" in the conventional political sense that Democrats tend to be liberal and Republicans conservative. This should be no surprise since seven of the Justices were appointed by Republican Presidents. My thesis is that these decisions are a product primarily of a pragmatic approach to judicial decision making. To support that answer, I will first discuss all three decisions. Then I will analyze the positions of the Justices who spoke to the issue of retaliation in these cases to see if they support my thesis that a pragmatic approach governed, leading to plaintiffs winning. The final section will attempt to place these Justices on a spectrum from pragmatist to formalist.

Keywords: Employer retaliation, statutory interpretation, judicial decisionmaking, employment discrimination, Supreme Court

JEL Classification: J7, J70, J71, K31, K4, K40

Suggested Citation

Zimmer, Michael J., A Pro-Employee Supreme Court?: The Retaliation Decisions (December 15, 2008). South Carolina Law Review, Vol. 60, 2009, Loyola University Chicago School of Law Public Law and Legal Theory Research Paper Series No. 2009-004, Available at SSRN: https://ssrn.com/abstract=1333778

Michael J. Zimmer (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States
312.915.7919 (Phone)
312.915.7201 (Fax)

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