“This is going to sound like a joke” Justice Alito said, “but, you know, it’s not.”
The not-joke was addressed to the lawyer for Abercrombie & Fitch who was defending the preppie fashion retailer’s decision not to hire an otherwise qualified teenager because she wore a hijab to her interview. Abercrombie says that her head covering was not in line with the company’s “classic East Coast collegiate style”. The EEOC sued the company on behalf of the teenager, Samantha Elauf, now 24, for not accommodating her religion.
Abercrombie’s defense: It couldn’t question her about her religion when she applied for a job, and she never informed them about her Muslim faith.
Which brings us back to Alito’s set-up: A Sikh wearing a turban, an Hasid wearing a shtreimel, a Muslim wearing a hijab, and a Catholic nun in habit go to the employment office and say, “we just want to tell you, we’re dressed this way for a religious reason. We’re not just trying to make a fashion statement”.
SCOTUSblog’s Amy Howe reports on the argument here.
“Justice Scalia has the opinions in two cases,” the Chief Justice announced as Scalia’s chair sat empty, “he’s asked that I announce them.”
It’s not unusual for the a senior justice to announce the opinion of an absent justice. There are often one or more empty chairs on opinion days when no arguments are heard. But there were two cases to be argued today and unless a justice has recused themselves you can expect that they’ll be on the bench.
Scalia did eventually appear from the maroon curtains behind the bench just as the first argument was getting under way, a sex discrimination case that was really about the EEOC’s failure to use “conciliation” in enforcing Title VII. It turns out the justice was merely delayed in traffic.
You can read Mark Walsh’s account of Scalia’s tardy arrival here on SCOTUSblog.
Here are a couple sketches fro the argument in Mach Mining v. EEOC.
Also spotted in the courtroom today, and also not unusual, was Cecilia Marshall, wife of the late Justice Thurgood Marshall. She is a frequent visitor to the Court.
Carolyn Kloeckner made a mistake navigating the labyrinth required to file a complaint against her former employer, the U.S. Department of Labor, alleging sex and age discrimination. Actually she filed two separate complaints with the EEOC, appealed to the MSPB and missed a deadline…it’s complicated.
But there were moments of levity as reflected in the arguments transcript and caught in my sketch :
Justice Kennedy, “I’ve probably led a charmed life, but I’ve never heard of a mixed case until this matter came before us”
Justice Kagan, “Mr. Schnapper, if I disagree with everything that you just said, I can still rule for you in this case, right?”
Schnapper, “you can, and you don’t need to address what I just said.”
The case is Kloeckner v. Solis and the transcript is here.