When the Supreme Court packs up its bags at the end of June each year, court watchers invariably scan the year's work for evidence of ideological trends. In keeping with the myth that the current Court is "conservative," the public is generally regaled with a chorus of alarms or expressions of relief, as the decisions warrant. Perhaps it is time to recognize that the balance of power on the "Rehnquist Court" is with the center-left. To be sure, the glory days of judicial activism are over, but that does not make the Court "conservative" in any serious way. The Rehnquist Court is mostly nonideological, with a tendency to make symbolic gestures toward the politically fashionable ideas of the secular elite. Seven appointments by Republican Presidents have left astonishingly little mark.
This term was no exception. About half the decisions were unanimous. Justice Anthony Kennedy was the most frequent swing vote; Chief Justice William Rehnquist, surprisingly, was second. Justice Clarence Thomas departed from his fellow conservatives more often than in the past. Justice Sandra Day O'Connor did so less often. Of the divided cases, the conservatives won a few small victories for property rights and the liberals won a few--more significant --victories for expanded civil rights liability. The most surprising decision of the term was that Ellis Island is not in New York. If I were a Justice, I would hold that the Supreme Court building is not in the District of Columbia.
The most significant cases of the term were the sexual harassment decisions, Burlington Industries v. Ellerth and Faragher v. City of Boca Raton. This is a notoriously confused area of the law, and the Court's signal contribution this year was to make it marginally less so. In theory, sexual harassment cases involve "statutory construction"--determining the meaning of a law passed by Congress. But since federal statutes say nothing about sexual harassment, and Congress is hardly anxious to take on the thankless task of telling us what it means, the courts have been forced to make up the law, both procedural and substantive, out of whole cloth.
The cases posed the question: When can employers be sued for acts of sexual harassment where the employer was not aware of the conduct and the worker suffered no adverse employment consequence? In 7-2 opinions, the Court held that employers are liable for the offensive conduct of their supervisory employees, but may raise an affirmative defense if they took "reasonable care" to prevent sexual harassment and the worker failed to take advantage of "any preventive or corrective opportunities provided by the employer."
This expansion of liability will almost certainly generate more lawsuits, since the promise of money damages creates an incentive for workers to eschew informal resolutions of workplace problems. Some employer groups have nonetheless praised the decision on the ground that it brings greater clarity to the law. That may be true, but the decisions still leave important questions unanswered. For example, the Court has provided little guidance about what an employer must do to establish "reasonable care." Indeed, the Court provided no guidance at all, except to hint that employers should promulgate an antiharassment policy, make it known to all employees, and provide a complaint procedure. Prudent investors will buy stock in harassment law consulting firms.
Interestingly, the Court reached a different conclusion for cases of sexual harassment under Title IX of the Civil Rights Act of 1972, which prohibits sex discrimination in federally funded educational programs. In Gebser v. Lago Vista Independent School District, written by Justice O'Connor, the Court held that a public school district cannot be held liable for money damages for sexual harassment of a student by a teacher unless the district had "actual notice of, and [was] deliberately indifferent to," the …