Elena Kagan Writes an Awesome Dissent

For indispensable reporting on the coronavirus crisis, the election, and more, subscribe to the Mother Jones Daily newsletter.


Four years ago Laura Symczyk filed a collective action against Genesis Healthcare Corp., alleging that it broke the law by automatically deducting 30 minutes per shift for meal breaks even when employees worked during the breaks. Genesis made a $7,500 settlement offer to Symczyk personally, but admitted no liability to the rest of its workforce. It was an obvious attempt to make the case go away cheaply, and Symczyk declined the offer. Her suit then went to trial, where Genesis put up an odd defense: By allowing its offer to lapse, Genesis said, Symczyk no longer had a personal stake in the case, which was therefore moot and should be tossed out. A district court agreed, as did the Third Circuit Court. Eventually the case made its way to the Supreme Court, and today, Elena Kagan, writing in dissent, made her view plain:

That thrice-asserted view is wrong, wrong, and wrong again…. When a plaintiff rejects such an offer—however good the terms—her interest in the lawsuit remains just what it was be­fore.

….After the offer lapsed, just as before, Symczyk possessed an unsatis­fied claim, which the court could redress by awarding her damages. As long as that remained true, Symczyk’s claim was not moot, and the District Court could not send her away empty-handed. So a friendly suggestion to the Third Circuit: Rethink your mootness-by-unaccepted-offer theo­ry. And a note to all other courts of appeals: Don’t try this at home.

That’s some fine opinion mongering there. But wait. Why was Kagan writing in dissent? Because the conservative majority, for hypertechnical reasons, decided that Symczyk had tacitly accepted that her claim was moot, and based its entire decision on that premise. Kagan again:

But what if that premise is bogus? The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen [] when something that in fact never happens [] is errantly thought to have done so….Feel free to rele­gate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise.

Shazam! Anyone who can write a Supreme Court opinion like that is OK in my book. (Via Eugene Volokh.)

DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

DEMOCRACY DOES NOT EXIST...

without free and fair elections, a vigorous free press, and engaged citizens to reclaim power from those who abuse it.

In this election year unlike any other—against a backdrop of a pandemic, an economic crisis, racial reckoning, and so much daily crazy—Mother Jones' journalism is driven by one simple question: Will America will move closer to, or further from, justice and equity in the years to come?

If you're able to, please join us in this mission with a donation today. Our reporting right now is focused on voting rights and election security, corruption, disinformation, racial and gender equity, and the climate crisis. We can’t do it without the support of readers like you, and we need to give it everything we've got between now and November. Thank you.

We Recommend

Latest

Sign up for our newsletters

Subscribe and we'll send Mother Jones straight to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate