The ‘reverse discrimination' US Supreme Court ruling could've been much worse

Boston Globe

2 days ago

I was struck by the fact that the opinion was written by Justice Ketanji Brown Jackson, the court's only Black woman and someone who was nominated after former President Joe Biden vowed to install a Black woman on the court.
Chief Justice John Roberts, when he is in the majority of a decision of the court, is the one who decides which justice will write the opinion. Lots of considerations go into who an opinion's author is, including how many other cases that justice has written compared to others.
Advertisement
And, as
'It also was a strategic assignment by Roberts,' Coyle observed. 'Justice Jackson, a member of a minority group, led the court in a discrimination case involving a member of a majority group. It gave the final decision an extra dollop of credibility.'
Advertisement
So was it some kind of subtle troll by Roberts to assign an opinion that will likely open the door to more so-called reverse discrimination cases? Only Roberts knows his thought process.
But what is clear is this: When it comes to protecting the ability of people to bring employment discrimination claims, this ruling could have been much, much worse. And for that, I'm grateful for Jackson's leadership.
After all, some of her colleagues, like Justice Brett Kavanaugh, have gone on record questioning whether the framework for proving employment discrimination claims that the court established more than half century ago should be tossed out.
That framework, established 52 years ago in
Then, the burden of proof shifts to the employer to show a 'legitimate, nondiscriminatory reason' for the adverse employment action.
Then the burden shifts back to the employee to prove that the employer's nondiscriminatory reason is a pretext for actual discrimination.
But when Kavanaugh was a judge on the US Court of Appeals for the DC Circuit, he questioned whether that framework should come into play at all when an employer seeks to dismiss a case in the early stages of litigation before the case has a chance to go to trial.
Advertisement
But dropping the McDonnell Douglas burden-shifting standard in such early challenges to litigation would risk slamming the door on many meritorious claims.
That's because it is very hard, before the parties have had a chance to obtain and produce crucial evidence of their case, for an employee to make a full evidentiary showing that their case is likely to succeed if it goes to a jury.
Burden-shifting schemes are meant to avoid this, and striking down McDonnell Douglas would have the immediate effect of making all discrimination claims more difficult to bring and prove.
Enter Jackson, with a reasonable alternative that the court could unanimously back: applying the McDonnell Douglas framework to all cases, whether the person claiming discrimination is a member of a minority group or not.
After all, as Jackson reasoned, that is what the plain reading of Title VII — the civil rights-era law that federal employment discrimination claims are brought under — calls for. That is originalism in action — declaring that a statute says what it says, based on its plain text.
And if that is the narrow holding that Jackson knew she could get everyone on board for, then good for her.
There are bigger battles ahead to fight.
This is an excerpt from
, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr.
Advertisement
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at