In a recent article,' Erwin Chemerinsky argues that the Supreme Court's constitutional law decisions of the 2002 Term "cannot be explained by any overarching theory or underlying set of interpretative principles." Instead, he argues, "constitutional law is all about value choices made by the Justices." Professor Chemerinsky also argues that given the current composition of the Court, "it is the value choices of the middle" - Justice O'Connor and Justice Kennedy - that matter the most. Professor Chemerinsky ends his article with the assertion that "[f]or better or worse, this really is the O'Connor Court." In reviewing the cases decided by the Court during the 2002 Term, this article explores whether Professor Chemerinsky's assessment of the constitutional jurisprudence of the Supreme Court holds true in the employment law context. Unlike the situation described by Professor Chemerinsky, when it comes to employment law decisions, at least those involving statutory interpretation disputes, the Court often speaks with one voice, frequently reaching unanimous or nearly unanimous opinions. Value choices do not appear to be driving the Justices' behavior in these cases. Instead, employment law decisions can be explained in terms of a "text- and rule-based" approach, most directly linked to Justice Scalia and the conservative block of the Court. Under this approach the Court first looks at the statute's text, interpreted in the light of "proper English" and related statutes. If the text of the statute is unclear, the Court finds a rule to decide the case, and at least under Justice Scalia's interpretation of this approach, the chosen rule should be one that minimizes the opportunity for judicial lawmaking.' The various statutory interpretation decisions reviewed in this article fit this approach remarkably well and help us understand the outcome of these cases. "Value choices" are not completely irrelevant in describing the employment law decisions of the Court, however. The unanimity of voice with which the Court speaks in statutory interpretation employment cases appears to be weaker in cases in which the Court is called to apply common law principles, and in constitutional law disputes.
Rafael Gely, Supreme Court's 2002 Term Employment Law Cases: Is This the Scalia Court?, 7 Emp. Rts. & Emp. Pol'y J. 253 (2003)