"Dog Bites Man" Passes for Legal News These Days

“The Supreme Court this week made big news because it hardly changed the law at all,” reports The Washington Post. “The court broke no new ground in deciding that workers are protected from retaliation for complaining about discrimination, just as they are protected from discrimination itself.” The story goes on to quote part of this press release that I wrote yesterday:

The Gómez-Pérez and Humphries rulings reinforce what should be readily apparent
to objective Court-watchers: The Roberts Court is neither necessarily
“pro-business” nor “conservative.” Instead, the Court evaluates the legal merits
of each case and rules accordingly. Even where the Chief Justice disagreed with
his colleagues (and notably with an opinion written by Justice Alito), in the
Gómez-Pérez case, the disagreement was a technical one over statutory language
and structure — and not anything that involves judicial philosophy or competing
theories of constitutional interpretation. The most interesting thing to note
from these cases is the difference in the justices’ views of stare decisis, the
principle that the Court places heavy weight on its own precedent. Whereas Chief
Justice Roberts and Justice Alito (and perhaps others) no doubt disagreed with
the precedent upon which the Humphries decision relied, they went along with
Justice Breyer’s reasoning that such disagreement over statutory interpretation
does not justify overturning precedent. Justices Scalia and Thomas, on the other
hand, consider that the risk to legal stability from overturning precedent to be
less than the harm from perpetuating the earlier error. Whatever the
significance of this difference of opinion, it is not an ideological
dispute.

Perhaps more importantly, as I (and apparently others) said to this reporter over the phone, Roberts and Alito are likely to be more accommodating of incorrect but established precedent when they pertain to statutory interpretation rather than constitutional rights. This is because Congress can always itself “overrule” an erroneous body of statutory construction by passing a new law — but of course the Court has the final word on constitutional issues (barring a constitutional amendment).

More generally, though, the above analysis, relating as it does to technical statutory construction that only reinforces existing law, would not normally be front-page (or, in this case, page A2) news. The nature of the cases to which the Roberts Court grants review, however — more technical, business issues instead of red-meat “culture war” stuff — suggests that we could be in for more “dog bites man” stories in future.

[Cross-posted from Cato's blog.]