At the 26th Annual North Carolina/South Carolina Labor and Employment Law CLE held in Asheville, North Carolina, Jonathan Harkavy will present his 2009-10 annual review of the Supreme Court’s employment law cases. His paper is entitled Supreme Court Employment Law Decisions, 2009 Term.
Introduction: The 2009 Term of the Supreme Court of the United States illustrated in unmistakable fashion the central role that workplace regulation plays in the lives of our citizens. The Court’s determination of a broad range of employment-related issues maintained its focus on employment law that began several terms ago. Not only do this term’s decisions affect a variety of policies and rules applicable to workers, employers and benefit providers, but the Roberts Court’s unabashed interest in doctrinal development, revealed by a deeper look at its decisions, also is reshaping the employment relationship itself and altering how work-related disputes are to be resolved.
For the first term in nearly a decade, the Court appears to be emerging from the shadow of the September 11, 2001 attack on our nation. To be sure, judicial fallout from the consequences of that assault, including construction of the Patriot Act and the Military Commissions Act and application of habeas corpus, is still noticeable, particularly in detainee disputes, but these cases no longer dominate center stage on the Court’s docket or capture headlines as they did in many of the past several terms. As a consequence, the Court has shown a renewed interest in doctrinal change generally, with a focus on employment law in particular. Most notably, this turn of events coincides with the coalescence of a reformist majority led by Chief Justice Roberts. As Adam Liptak’s recent review of the Roberts’ Court’s first five years points out, Justice Alito’s succession to Justice O’Connor’s seat has moved the Court rightward philosophically, making it (in Liptak’s words) the “most conservative” Court in recent history. The New York Times, July 25, 2010, pp. 1, 20-23. This term’s employment decisions do not contradict Liptak’s assessment. In sum, the spotlight on the employment relationship during the 2009 Term was manifest not only in the employment and labor cases themselves, but also in a variety of non-employment decisions that are likely to have a bearing on workers and employers alike. For employment lawyers, therefore, the 2009 Term was a revealing and consequential one, to say the least.