Tuesday, May 27, 2008

Decisionism Eats Some Crow

If you had predicted that this Supreme Court, this nine, would adopt an expansive view of permissible employment discrimination claims, Decisionism would have mocked you to no end. And yet that's exactly what happened today in two cases, Gomez-Perez v. Potter, No. 06-1321, and CBOCS West, Inc. v. Humphries, 06-1431.

Justice Thomas dissented in both cases -- not a big shock -- but his dissent in the Humphries case does provide us with one of the most curiously reasoned passages by any justice in recent memory:

Retaliation is not discrimination based on race. When an individual is subjected to reprisal because he has complained about racial discrimination, the injury he suffers is not on account of his race; rather it is the result of his conduct.

The italics, well, those are all Justice Thomas. Screwing around with this passage is unnecessary. It barks for itself.

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