Justice Souter on the Roberts' Court: an Analysis of Souter's Decidions in the 2007-2008 Term

• Citation: Vol. 49 No. 2 Pg. 0008
• Publication year: 2008
• Pages: 0008
• Year: 2008
• topic: Employment Law

New Hampshire Bar Journal 2008.

2008 Autumn, Pg. 8. JUSTICE SOUTER ON THE ROBERTS' COURT: An Analysis of Souter's Decidions in the 2007-2008 Term

New Hampshire Bar Journal
Volume 49, No. 2
Autumn 2008

JUSTICE SOUTER ON THE ROBERTS' COURT: An Analysis of Souter's Decidions in the 2007-2008 Term

By Attorney Mark Puffer and Katherine E. Lewis

Chief Justice Roberts's goal of greater unanimity and consensus has fallen short this term with just 30 percent of the decided cases resulting in unanimous votes. Overall, this Court has decided the fewest cases since the 1953-54 term, and has experienced consistently decreasing unanimity over the last three years.(fn1) Chief Justice Roberts's goal to bring the Court together by discouraging the pursuit of individualized jurisprudence and encouraging the Justices to work as a Court,(fn2) seems to be slipping away.

In decisions that were not unanimous, Justice Souter dissented in 13 cases this term, and sided with the majority in 28 cases. He authored only 11 opinions: three unanimous decisions of the Court, seven majority opinions, and one dissent. Souter authored only one majority opinion on a controversial topic this term.(fn3)

EMPLOYMENT

In Kentucky Retirement Systems v. Equal Employment Opportunity Commission,(fn4) Justice Souter joined Justices Breyer, Stevens, Roberts and Thomas in the 5-4 majority opinion, ruling in favor of the state. Under Kentucky's retirement program, hazardous-occupation employees who became disabled before they were eligible for retirement were credited with years not actually worked when calculating their pension benefits; however, employees who became disabled after reaching retirement age did not receive the same credit. The Court determined the state's pension program, which lawfully makes age, in part, a condition of pension eligibility, and treats workers differently in light of their pension status, did not violate the Age Discrimination in Employment Act ("ADEA"). The pension program has a non-age-related purpose and does not discriminate based on age, as age and pension status are analytically different concepts.(fn5) Much like the Social Security system, where age is an express factor in the calculation of benefits, the ADEA permits an employer to condition pension eligibility on age.(fn6)

An employer or a professional insurance company which both funds a plan and evaluates claims against it is not uncommon. However, in Metropolitan Life Insurance Co. v. Glenn,(fn7) this dual role led to an abuse of discretion by the company in reviewing an employee's claim. MetLife encouraged its employee to apply to the Social Security Administration for disability benefits because she could no longer work, and when she was awarded those benefits, MetLife received an offset from her retroactive Social Security award. MetLife then ignored the agency's finding that she was unable to work, ruling that she was capable of doing sedentary work, and denied her benefits. Justice Souter joined Justices Breyer, Stevens, Ginsburg and Alito in the majority opinion, which determined that where an insurance company plays the dual role of provider and decision-maker with respect to ERISA benefits, the reviewing court must take this conflict of interest into consideration in determining whether an administrator has abused its discretion in denying benefits.

While the burden on an employee is high to prove that an employment decision was motivated by age, Justice Souter, in his majority opinion in Meacham v. Knolls Atomic Power Laboratory,(fn8) stated that an employer facing a disparate-impact claim and planning to defend on the basis of reasonable factors other than age ("RFOA"), must not only produce evidence raising the defense, but must also persuade the fact finder of its merit.(fn9) Souter admitted that this would make it harder and more costly for employers to defend than if they merely bore the burden of production, but reasoned that Congress "set the balance where...