Alito vs. ThinkProgress Redux

Julian Sanchez | November 1, 2005

ThinkProgress responds to my critique of their anti-Alito talking points from the other day. To my general point that, in each case, they make broad claims that can't be supported by the specific cases they cite, they reply:

Hit and Run's argument has some intuitive appeal but, in the end, misses the point. When a judge consistently applies to law to the facts in a certain way it has broad policy impacts.

Fair enough in principle, and the Cass Sunstein piece they link to on trends in Alito's dissents bolsters the point. But again, I think if you look at the specific rulings at issue, you'll find the rulings are sufficiently narrow and specific to the fact patterns that in this instance the generalizations are unwarranted; you'd need a bigger sample set to justify the claims.

I can think of at least one issue where looking at a broader set of cases reveals that there isn't the kind of pattern ThinkProgress wants to assert. They aver that Alito's argument for greater deference to lower immigration judges in assessing the credibility for asylum petitioners revealed a general hostility to immigrants. But we don't appear to have a consistent pattern of ruling against such claims:

According to at least one former Alito clerk, Nora Demleitner, he is not the rabid conservative he's so far been made out to be. Demleitner cites Alito's majority decision in the 1993 case Fatin v. INS, in which Alito held that an Iranian woman could be granted asylum if she could show that complying with her country's "gender specific laws and repressive social norms" would be deeply abhorrent to her.

They and Sunstein have a point about extrapolating from patterns; my point was precisely that they seemed to be making broad inferences from individual cases, where it wasn't clear how fact-dependent the ruling in the instance was.

Now, to illustrate their point, ThinkProgress quotes the majority in
Bray v. Marriot, the employment discrimination case from which Alito dissented:

For example, if Alito's interpretation of the law in Bray v. Marriott was accepted it would "immunize an employer from the reach of Title VII [even] if the employer's belief that it had selected the 'best' candidate was the result of conscious racial bias." In other words, racial discrimination would be allowed.

All I can say here is click the link, read the dissent, and decide whether you think the majority's characterization of what it entails is remotely fair. As I parse the majority argument, here's what they're saying: Alito argues that so long as Marriot was genuinely trying to promote the "best" candidate, they should prevail on their motion for summary judgement—which the lower court had awarded them. Now, apparently the evidence on record was such that you could make a case for Marriot having erred in their choice. But, says Alito, the point at issue for the discrimination case is whether their purported attempt to select the best candidate was a sham, not whether it was optimal. And he concludes that in this case, there wasn't good reason to doubt Marriot had tried to promote the best candidate, whether or not you think they chose wisely. "A ha!" says the majority, "but what if Marriot's conception of 'best' included 'non-black'? Then they could honestly be looking for the 'best' candidate as they define it, and you'd always have summary judgement in favor of the employer!"

Now, a little hyperbole from both majorities and dissents about what the other sides position would lead to is par for the course. But if I'm understanding the majority's reading here correctly, it betrays a total lack of interpretive charity: It is crystal clear from Alito's dissent that when he talks about an employer genuinely seeking the "best" candidate, he means to exclude bigoted constructions of what counts as "best." Maybe they mean something a little more subtle: That it's always possible that a judgement call about the "best" candidate is influenced by racial prejudice. Well, it surely is. Alito's opinion seems to be saying: "Fine, that's always possible, but to get to trial, you need some reason to think it was actually the case, and that's different from offering some reason to think the employer didn't make the objectively best judgement call and then suggesting without further evidence that prejudice might have been the reason." That doesn't strike me as an impossibly high bar to meet, or as one that would spell the end of employment discrimination suits.

Anyway, one thing I'm curious about is how the case actually turned out on remand—something a quick Google search failed to reveal. If there was evidence of bias that Alito ignored, that might be suggestive.

Comments

|11.1.05 @ 11:24AM|#

In regards to the former clerk's comment about the Iranian immigration case, being anti-Iran/anti-Islamism is not incompatible with being a "rabid conservative".

|11.1.05 @ 11:27AM|#

No, but it is inconsistent with being reflexively hostile to immigrants and asylum seekers, which was ThinkProgress' claim.

|11.1.05 @ 11:28AM|#

The problem with the employment discrimination stuff is that proving or disproving it is essentially an exercise in mind-reading.

On one hand, you're not often going to get hard evidence of a discriminatory intent. Very few people would ever put such statements in writing, even if they believe them and act on them.

On the other hand, we currently have the burden-shifting paradigm at work - essentially, all the plaintiff has to do is show that he is from a "protected class" and was not hired/promoted/etc. in favor of a non-protected class person. Once you do that, the burden shifts to the employer to prove the negative - that they don't have an improper motive. And proving a negative is nearly impossible.

So we have all kinds of judicial activism on both sides - one side shifting burdens, the others carving out "safe harbors" - as well as legislatures with the same competing interests who craft intetionally vague laws, leaving the courts to take the heat for supplying details.

It's a mess. And there really is no good way of fixing it.

|11.1.05 @ 11:53AM|#

Jualian Sanchez,

...but it is inconsistent with being reflexively hostile to immigrants and asylum seekers...

Unless of course what they really meant was that he was hostile merely to hispanics or other non-favored immigrants.

|11.1.05 @ 12:39PM|#

It's a mess. And there really is no good way of fixing it.

There is an easy way to fix it. Get the federal government out of the business of telling a company who they can and cannot hire, fire, promote or demote.

|11.1.05 @ 12:40PM|#

I would like to know when the supreme court will formally rule on which issues are to be made up on the spot.

|11.1.05 @ 12:43PM|#

"There is an easy way to fix it. Get the federal government out of the business of telling a company who they can and cannot hire, fire, promote or demote"

Well, yes. I agree wholeheartedly, but in my mind, that is not "fixing" employment discrimination laws. However, I refuse to get involved in another pissing match over definitions, so I'll just leave it at that. (not that you were involved in that previous exchange)

|11.1.05 @ 12:50PM|#

ah yes, that bogeyman, the federal govt. If we just get it out of interfering with business hiring decisions, we can get back to businesses being exploitative and descriminating like they naturally are, and the world will fix itself right up as poverty increases and those in poverty take it up the rear without any recourse.

Until they manage to band together, like they did before, and fight back, correcting the system...

...right back to where it is now.

|11.1.05 @ 1:04PM|#

If we just get [the federal government] out of interfering with business hiring decisions, we can get back to businesses being exploitative and descriminating like they naturally are.

You say that like those are bad things. If you do not feel like being exploited or discriminated against feel free to do your business elsewhere.

|11.1.05 @ 1:40PM|#

Unless of course what they really meant was that he was hostile merely to hispanics or other non-favored immigrants.

Why not let them do their own back-pedalling and goalpost-moving?

|11.1.05 @ 1:50PM|#

Bray v. Marriott was dismissed w/o prejudice after remand.

U.S. District Court
District of New Jersey [LIVE] (Newark)
CIVIL DOCKET FOR CASE #: 2:94-cv-00979-MTB

BRAY v. MARRIOT HOTELS, et al
Assigned to: Judge Maryanne Trump Barry
Demand: $0
Cause: 42:2000 Job Discrimination (Race)
Date Filed: 03/02/1994
Jury Demand: Plaintiff
Nature of Suit: 442 Civil Rights: Jobs
Jurisdiction: Federal Question
Plaintiff
BERYL BRAY represented by JOSEPH H. NEIMAN
117 CENTRAL AVENUE
HACKENSACK, NJ 07601
[phone]
Email: [e-mail]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED

V.
Defendant
MARRIOT HOTELS
also known as
MARRIOTT CORPORATION
also known as
MARRIOTT HOTEL CORPORATION represented by WILLIAM J. PROUT, JR.
TOMPKINS, MCGUIRE, WACHENFELD & BARRY, LLP
100 MULBERRY STREET
FOUR GATEWAY CENTER
NEWARK, NJ 07102
[phone]
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
MARRIOTT HOTELS AND RESORTS, INC. represented by WILLIAM J. PROUT, JR.
(See above for address)
LEAD ATTORNEY
ATTORNEY TO BE NOTICED
Defendant
JOHN DOE
#1-5
Defendant
XYZ CORP.
#1-5

Date Filed

#

Docket Text
03/02/1994 1 COMPLAINT filed; jury demand FILING FEE $ 120 RECEIPT # 189165 (femp) (Entered: 03/04/1994)
03/02/1994 2 NOTICE of Allocation and Assignment filed. Magistrate STANLEY R. CHESLER (femp) (Entered: 03/04/1994)
03/04/1994 SUMMONS(ES) issued for MARRIOT HOTELS, MARRIOTT HOTELS AND ( 35 Days) (Mailed to Counsel) (femp) (Entered: 03/04/1994)
05/13/1994 3 ANSWER to Complaint by dfts., MARRIOT HOTELS, MARRIOTT HOTELS (cs) (Entered: 05/16/1994)
05/13/1994 4 CERTIFICATION OF SERVICE of copy of answer by dft., Marriott International, notice of motion to appear pro hac vice w/supporting certification etc. (cs) Modified on 05/16/1994 (Entered: 05/16/1994)
05/13/1994 5 Notice of MOTION for MARY HELEN MEDINA to appear pro hac vice by dfts., MARRIOT HOTELS, MARRIOTT HOTELS AND, Motion hearing set for on [5-1] motion (SILB) (cs) (Entered: 05/16/1994)
05/13/1994 6 CERTIFICATION of MARY HELEN MEDINA in support of [5-1] motion to appear pro hac vice on behalf of dft., MARRIOTT (cs) (Entered: 05/16/1994)
05/13/1994 7 CERTIFICATION of WILLIAM J. PROUT, JR. in support of [5-1] motion for MARY HELEN MEDINA to appear pro hac vice for dft., MARRIOTT (cs) (Entered: 05/16/1994)
05/23/1994 8 ORDER FOR RULE 16 CONFERENCE, setting scheduling conference for 7/1/94. ( signed by Magistrate Stanley R. Chesler ) n/m (femp) (Entered: 05/23/1994)
06/14/1994 9 ORDER granting deft's [5-1] motion for MARY HELEN MEDINA, ESQ. to appear pro hac vice on behalf of deft. ( signed by Magistrate Stanley R. Chesler ) n/m (femp) (Entered: 06/17/1994)
07/05/1994 10 PRETRIAL SCHEDULING ORDER setting Amending of pleadings on 9/12/94; Discovery cutoff for 12/1/94 and a Pretrial conference on 12/16/94. ( signed by Magistrate Stanley R. Chesler ) n/m (femp) (Entered: 07/07/1994)
07/05/1994 11 TRACK ONE ORDER OF DESIGNATION signed by Magistrate Stanley R. Chesler FILED (ar) (Entered: 07/13/1994)
12/20/1994 12 FINAL PRETRIAL ORDER filed ( signed by Magistrate Stanley R. Chesler ) n/m (nr) (Entered: 12/21/1994)
12/20/1994 13 STIPULATION AND PROTECTION ORDER ( signed by Magistrate Stanley R. Chesler ) (femp) (Entered: 12/21/1994)
02/15/1995 14 Notice of MOTION in limine by MARRIOT HOTELS, MARRIOTT HOTELS AND, proof of service. (brief sub) Motion hearing set for 3/13/95 on [14-1] motion . (nr) (Entered: 02/17/1995)
02/15/1995 15 CERTIFICATION of GINA G. MILESTONE (nr) (Entered: 02/17/1995)
03/13/1995 16 CONSENT ORDER Re: Im Limine Motions time is extended to return date of Motion for Sum Jgm. ( signed by Magistrate Stanley R. Chesler ) (femp) (Entered: 03/14/1995)
06/14/1995 17 Notice of MOTION for summary judgment by dfts., MARRIOT HOTELS, Motion hearing set for 7/10/95 on [17-1] motion w/Cert of Svc (Brief/PO Subm) (femp) (Entered: 06/16/1995)
06/14/1995 18 AFFIDAVIT by pla., BERYL BRAY in opposition to defendants' [17-1] motion for summary judgment (femp) (Entered: 06/16/1995)
06/14/1995 19 AFFIDAVIT of RICHARD LESSER (femp) (Entered: 06/16/1995)
06/14/1995 20 AFFIRMATION of JOSEPH H. NEIMAN (femp) (Entered: 06/16/1995)
06/14/1995 21 AFFIDAVIT of GINA G. MILESTONE (femp) (Entered: 06/16/1995)
06/14/1995 22 SUPPLEMENTAL AFFIDAVIT of GINA G. MILESTONE in further support of dfts.,[17-1] motion for summary judgment (femp) (Entered: 06/16/1995)
07/10/1995 23 Minute entry: Proceedings recorded by Ct-Reporter: None; Minutes of: 7/10/95; The following actions were taken, at call for hearing on [17-1] motion for summary judgment taken under advisement, Rule 78 By Judge Maryanne T. Barry (femp) (Entered: 07/13/1995)
07/12/1995 24 CONSENT ORDER that plaintiff respond to defendant's in limine motions by 7/17/95 ( signed by Magistrate Stanley R. Chesler ) n/m (femp) (Entered: 07/13/1995)
08/23/1995 25 OPINION ( signed by Judge Maryanne T. Barry ) (Copy to NJLJ) (femp) (Entered: 08/25/1995)
08/23/1995 26 ORDER granting Ct I of Title VII claim and Ct IV of NJLAD claim re: [17-1] motion for summary judgment, dismissing remaining state-law claims ( signed by Judge Maryanne T. Barry ) n/m (femp) Modified on 08/28/1995 (Entered: 08/25/1995)
08/28/1995 Case closed (femp) (Entered: 08/28/1995)
09/19/1995 27 NOTICE OF APPEAL filed at 11:00 A.M. by pla., BERYL BRAY Re: [26-1] order dismissing remaining state-law claims . Fee Status: $105.00. Copies of notice of appeal sent to Clerk, USCA Attorney(s): WILLIAM J. PROUT JR., JOSEPH H. NEIMAN (femp) (Entered: 09/19/1995)
10/04/1995 28 NOTICE of Docketing ROA from USCA Re: [27-1] appeal USCA NUMBER: 95-5662 (femp) (Entered: 10/04/1995)
10/05/1995 29 Transcript Purchase Order RE: [27-1] appeal indicating none requested (sr) (Entered: 10/06/1995)
05/08/1997 30 COPY OF OPINION from USCA (cs) (Entered: 05/12/1997)
05/08/1997 31 Certified Copy Of JUDGMENT from the USCA reversing and remanding JUDGMENT of USDC of 8/25/95 as to the grant of summary judgment to Marriott on Bray's Title VII and NJLAD claims; directing the USDC to reconsider Bray's related state law claims; granting Marriott's motion to strike portions of the appellant's brief; COSTS taxed agst appellees (MARRIOTT) (cs) (Entered: 05/12/1997)
05/16/1997 32 Certified Copy Of Order from the USCA in lieu of formal mandate granting in part; reversing and remanding to the USDC for further proceedings. Costs taxed agst appellees. (MARRIOTT HOTELS) in the sum of $625.20 (cs) (Entered: 05/19/1997)
05/27/1997 33 ORDER on Mandate from USCA with appellant's costs in the amount of $625.20 in favor of pltf., BERYL BRAY and agst dft., MARRIOTT HOTELS, etal (n/m) (cs) (Entered: 05/29/1997)
08/14/1997 34 ORDER, dismissing action without costs and without prejudice ( signed by Judge Maryanne T. Barry ) n/m (femp) (Entered: 08/14/1997)

|11.1.05 @ 1:50PM|#

"Anyway, one thing I'm curious about is how the case actually turned out on remand"
I checked it on westlaw- there is no direct history, so i'm guessing it settled after the appellate decision

|11.1.05 @ 2:49PM|#

Note the judge on the case: Maryanne Trump Barry. A google search indicates that she was, after this case, nominated to the US Court of Appeals by: Bill Clinton. So: A Clinton Appeals Judge agreed with Alito's point of view - or am I mistaken here?
So to those on the left - where's the beef?

|11.1.05 @ 2:56PM|#

Gino, good point. Of course, she may have granted summary judgment for reasons different than Alito- you'd have to check her opinion. Also just wanted to point out that Judge Maryanne Trump Barry is the sister of the Donald.

|11.1.05 @ 2:59PM|#

It may well have been dismissed because the parties settled. Settlement agreements are not always presented to/signed off on by the Court.

|11.1.05 @ 6:17PM|#

srob1024:

You may be right, but typically such settlements result in dismissal with prejudice. This was dismissed without prejudice, according to the final line in alan's post (kudos, Alan!).

|11.2.05 @ 11:07AM|#

A key point is that this case revolved around the standard for summary judgment in employment discrimination actions. The question isn't whether Marriott broke the law; the question is how much evidence the plaintiff has to allege in order to get the case to a jury. Alito's standard means that if the defense is merely plausible then the plaintiff does not get to take their case to trial. Since plaintiffs do not always (although surprisingly often) state their discriminatory intent in documentary form it has traditionally been up to juries to decide which witnesses to believe. As a practical matter Alito's standard would eliminate the vast majority of such claims, regardless of merit.
This was Alito's real problem in Casey v. Planned Parenthood. He used a rational basis standard to judge the legal restrictions which 1. is a level of scrutiny that allows almost every governmental action and 2. is not the level of scrutiny that the Court has ruled applies to privacy rights and/or gender based restrictions (the Court has ruled that the standard there is intermediate scrutiny; somewhere between rational basis and strict scrutiny which applies to, among other issues, racial regulations and the right to travel).

|11.2.05 @ 11:15AM|#

The precedent cited by Alito was

To discredit the employer's proffered reason, however, the plaintiff cannot simply show that the employer's reason was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent. Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence.

In other words, the test is not "does the judge believe" but rather "is it possible a rational factfinder could believe" on whether discrimination was part of the decision. Alito effectively changes that to "would a rational factfinder". He makes the decision that the evidence could not possibly make the assertions lack credence. He also ignores the evidence that the Manager (Nemetz) lied about giving Bray an interview (which he said "we must take as fact") and about the process. This is a crucial "contradiction" or "inconsistency" that could certainly lead a rational factfinder to question the credence of the Marriot's claims.

Alito is also intellectually dishonest when he later states:

The second piece of evidence identified by the majority is that Leo Nemetz, the General Manager at the Park Ridge Marriott, testified at his deposition, with respect to Bray, that:


I thought she was an excellent employee who was a maintainer. If I thought she was capable of doing the job, I may have given it to her . But I was looking for the best qualified candidate.

Maj. Op. at 13 (emphasis added by majority). The majority latches on to the statement of Nemetz that he did not think Bray ?capable of doing the job,? and claims that the statement was so clearly erroneous that a factfinder could have concluded that there was illegal bias in the selection process. Maj. Op. at 13. I utterly fail to see this. As a literal matter Nemetz appears to have been in error in suggesting that Bray was not ?capable of doing the job.? But in his very next statement, he qualified what he had said about Bray by explaining: ?[b]ut I was looking for the best qualified candidate.? Maj. Op. at 13 (emphasis added). This latter statement implies that Nemetz thought that Bray was not the ? best ? among the candidates, and that that was what he meant by stating that Bray was not qualified -- as opposed to Nemetz thinking that Bray did not possess the minimal qualifications necessary to perform the job. But the majority ignores Nemetz's explanation that he was looking for the ?best qualified candidate.? For me, Nemetz's explanation makes it clear that the former statement, ?[i]f I thought she was capable of doing the job, I may have given it to her? was no more than loose language. That this was no more than loose language is confirmed by the fact that Nemetz, upon being pressed by Bray's counsel as to whether he really meant that Bray did not possess the minimal qualifications for the job, withdrew that statement. Maj. Op. at 13-14. The majority, however, isolates the ?[not] capable of doing the job? language and concludes that there is evidence from which it could be inferred that the employer was not truly looking for the ?best qualified candidate.?

But ignores the full exchange as included in the majority decision:

Q: I'm not asking if you thought --- Therese Riehle was the best. . . . I'm asking you if you thought Beryl Bray was qualified to be the director of services . . . .

A: No, I didn't.

Q: Can you tell me why not?

A: I thought she was an excellent employee who was a maintainer. If I thought she was capable of doing the job, I may have given it to her . But I was looking for the best qualified candidate.

and

App. at 263a. The dissent chooses to interpret this as merely Nemetz's inarticulate statement that he was seeking the "best" candidate, and that Bray, though qualified, was not the "best qualified" candidate. See Dissenting Op. at 10. A factfinder may well agree with that interpretation, but that is not for us to decide.

And remember this is a preponderence of evidence standard, not a beyond reasonable doubt standard. So to dismiss even the possibility that a rational factfinder could come to the conclusion that the honesty of Marriot was in question given the contradictions and inconsistencies was 'activist'.

David Nieporent|11.2.05 @ 2:40PM|#

What Alito ultimately is saying in the Bray case is that the majority's opinion would eviscerate the McDonnell Douglass analytical framework, by allowing cases to survive when the only evidence that the plaintiff has was minor deviations from written company procedures. A plaintiff is supposed to show by a preponderance of the evidence that the company's justification is pretextual, not that it is imperfect.