The late Justice Antonin Scalia once told this reporter: “There is no relationship between the difficulty of a case and its importance. It could be the most insignificant case, but it’s a bear figuring out the right answer."
The first wave of decisions in this term and in most terms, has largely been by unanimous votes. That unanimity feeds some beliefs that the Justices are getting the easy, less significant cases out of the way before tackling the harder, blockbuster cases.
But that assessment overlooks the countless hours of legal work put into briefs in each case by lawyers for both sides and lawyers representing “friends of the court,” as well as time spent by justices’ clerks preparing the cases and discussing them with their justices, and the justices’ own preparation for oral arguments and subsequent discussions in their private conference and then the writing and sharing of draft opinions.
Just how many unanimous decisions so far this term were actually “bears” to figure out? We aren’t likely to learn that answer for many years because of the confidentiality of the Justices’ deliberations and the lengthy holds they place on the public release of their private papers.
With so many potential blockbuster cases remaining to be decided– abortion, guns, Trump immunity, social media and more–the unanimous decisions may become just footnotes in final assessments of the October 2023 term. But here are three not so insignificant unanimous decisions worth more than a footnote.
Three Recent Unanimous Decisions
In Muldrow v. City of St. Louis, Missouri, Jatonya Muldrow was a sergeant working on public corruption and human trafficking in the St. Louis Police department’s intelligence division for nine years. Muldrow learned she was being transferred out of the division by her supervisor in a department-wide email and was replaced by a male with whom her supervisor had previously worked.
Although her salary was unchanged, the transfer dramatically affected, for worse, her schedule, her supervisor, her duties, her work environment, and other job benefits and conditions. Muldrow sued the department claiming it had violated the nation’s major job discrimination law, Title VII.
As the case came to the Supreme Court, the issue was whether Muldrow, in making her Title VII discrimination claim, had to prove that the job transfer decision caused a “materially significant disadvantage.” That was the test imposed by a number of the lower courts.
The Supreme Court rejected that test. Justice Elena Kagan, writing for the court, said: “Although an employee must show some harm from a forced transfer to prevail in a Title VII suit, she need not show that the injury satisfies a significance test. Title VII’s text nowhere establishes that high bar.”
To reach its decision, the court had to work through the city’s arguments about Title VII’s text, precedents and policy objections. The impact of the decision, Kagan added: “First, this decision changes the legal standard used in any circuit that has previously required ‘significant,’ ‘material,’ or ‘serious’ injury. It lowers the bar Title VII plaintiffs must meet. Second, because it does so, many cases will come out differently.”
But it wasn’t so simple for three justices who agreed with the case’s outcome but not its analysis. Justices Clarence Thomas and Samuel Alito did not think the lower courts were imposing a high bar, just using terminology similar to Kagan’s “some harm.” Justice Brett Kavanaugh said it was enough for Muldrow to show that a change in the terms, compensation, conditions or privileges of her employment was because of sex. “The discrimination is harm,” he wrote.
Still, it was a unanimous decision even with the opinions of Thomas, Alito and Kavanaugh.
In recent years, the Justices have had several cases in which they had to decide what type of workers were exempt from mandatory arbitration agreements with their employers. Chief Justice John Roberts Jr. led the unanimous court in another of those cases– Bissonnette v. LePage Bakeries Park St.
Neal Bissonnette and Tyler Wojnarowski had a contract with the bakery company to distribute its baked goods in parts of Connecticut. When they sued the company for violating state and federal wage laws, the company moved to compel arbitration. The two men argued they were exempt from arbitration under Section 1 of the Federal Arbitration Act’s exception for “contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” The lower court ruled against the two men, saying that the §1 exemption was available only to workers in the transportation industry, but that the men were in the bakery industry.
The question for the Supreme Court was whether a transportation worker must work for a company in the transportation industry to be exempt under §1 of the FAA. “We conclude that there is no such requirement,” wrote Roberts.
Roberts, looking to past rulings, applied a canon of statutory interpretation known as ejusdem generis, which means that courts “interpret a ‘general or collective term’ at the end of a list of specific items in light of any ‘common attributes’ shared by the specific items.” Roberts explained that the general phrase “class of workers engaged in . . . commerce” is “controlled and defined by reference to” the specific categories “seamen” and “railroad employees” that precede it.” The court, he said, concluded in earlier cases that the “linkage” between “seamen” and “railroad employees” is that they are both transportation workers. In later cases, he added, the Court rejected the “industry-wide” approach sought by the baking company.
The key in these cases, explained the Chief Justice, is what the workers do, not for whom they do it. The court’s decision could have a real world impact on drivers in a variety of industries, making it easier for them to qualify for the exemption from mandatory arbitration.
And finally, the justices were asked in Department of Agriculture v. Kirtz whether the federal government was a lender who could be sued under the Fair Credit Reporting Act for reporting false information to agencies that generate credit reports or was it shielded from such lawsuits by sovereign immunity.
In what Justice Kagan called “Statutory Interpretation 101” during arguments in November, a unanimous court, led by Justice Neil Gorsuch, ruled the government could be sued for damages when Reginald Kirtz claimed the USDA falsely told TransUnion—a credit reporting agency—that his account was past due, thus damaging his credit score and his ability to secure loans at affordable rates.
The federal government is generally immune from suits for money damages unless Congress has waived its sovereign immunity. Gorsuch wrote that the Court determines a waiver of immunity by applying a “clear statement” rule– the language of a statute must be unmistakably clear that Congress has waived immunity. The court previously had found such a waiver only in two situations.
The government raised “many and resourceful arguments,” Gorsuch wrote. But in 20 pages, he carefully found that none of those arguments overcame the language of the Fair Credit Reporting Act. The act requires “person[s]” who furnish information to consumer reporting agencies to investigate consumer complaints and make any necessary corrections. The act authorizes consumer suits for money damages against “[a]ny person” who willfully or negligently fails to comply with this directive. And another section of the act defines the term “‘person’” to include “any . . . governmental . . . agency.”
Significant? In his opinion, Gorsuch noted: A 2021 study cited by the Consumer Financial Protection Bureau found “that over 34% of consumers surveyed were able to identify at least one error in their credit reports.” Mistakes like these, he wrote, can lead lenders to insist on higher interest rates or other terms that make it “difficult or impossible” for consumers “to obtain a mortgage, auto loan, student loan, or other credit.” These days, too, he added, federal agencies are among “‘the largest furnishers of credit information’” to consumer reporting agencies.
All three cases involved interpreting statutes, which is the meat-and-potatoes work of the Supreme Court. The constitutional challenges are really a small part of what the court does each term but attract a disproportionate amount of attention.
In all three cases, there were numerous briefs and arguments on each side that required the justices to address in some way as they reached and supported their decisions. Was any one of the three a “bear” to figure out? Maybe. But you could add to Justice Scalia’s insight with some confidence that there really are no easy cases in the Supreme Court.
Marcia Coyle is a regular contributor to Constitution Daily and PBS NewsHour. She was the Chief Washington Correspondent for The National Law Journal, covering the Supreme Court for more than 30 years.
