The following opinions were released by the U.S. Supreme Court on May 27, 2008:

• Gomez-Perez v. Potter. Opinion of the Court by Alito, J., joined by Stevens, Kennedy, Souter, Ginsburg, Breyer, JJ.; dissenting opinion by Roberts, C.J., joined by Scalia, Thomas, JJ.; dissenting opinion by Thomas, J., joined by Scalia, J.. The plaintiff postal employee brought a claim against the postmaster alleging employment discrimination under the Age Discrimination in Employment Act of 1967 (”ADEA”) in the form of retaliatory measures taken following her complaint of age and sex discrimination. The district court for the District of Puerto Rico granted the respondent’s summary judgment motion on the basis that the ADEA’s federal employment provision does not provide a claim for retaliatory measures; the Court of Appeals for the First Circuit affirmed. The Supreme Court reversed, holding that the phrase “discrimination based on age” includes actions based on retaliation for filing an age discrimination complaint. The Court compared the ADEA language with similar language in § 1982 and in Title IX that the Court had previously found to reach retaliation claims; then held that it was improper to conflate the question of whether a statute conferred a private right of action (either implicitly or expressly) with the question of what conduct that right of action should reach; that retaliation claims do not play a lesser role in age discrimination claims under the ADEA than they do for Title IX claims; and that there is no indication that the legislative history of Title IX and the ADEA are distinguishable with regards to Congress’s intent to redress retaliation claims. The Court rejected the respondent’s argument that the presence of an express retaliation provision in the ADEA’s section addressing private sector actions, and the lack of such an express provision in the federal employment section, implied that retaliation claims were not included within the provisions regarding federal employment, observing that the two sections were not enacted at the same time (thereby lessening the negative inference), and that the prohibition language in the two sections is dissimilar in approach. Dissenting, Chief Justice Roberts observed that “the statutory language and structure, as well as the fact that Congress has always protected federal employees from retaliation through the established civil service process, confirm that Congress did not intend those employees to have a separate judicial remedy for retaliation under the ADEA.” In Justice Thomas’s dissent, he reiterated his position that retaliation should never be included as per se within a general prohibition against discrimination.
• CBOCS West, Inc. v. Humphries. Opinion for the Court by Breyer, J., joined by Roberts, C.J., and Stevens, Kennedy, Souter, Ginsburg, and Alito, JJ.; dissenting opinion by Thomas, J., joined by Scalia, J.. Plaintiff brought a complaint for direct race discrimination against CBOCS (Cracker Barrel restaurants) under Title VII, as well as a § 1981 retaliation claim against CBOCS for retaliatory acts allegedly suffered after complaining about the discriminatory dismissal of a fellow employee. The district court granted summary judgment to the respondent, dismissing the Title VII claim for failure to timely pay the filing fee and dismissing the § 1981 claim on the basis that § 1981 does not include the prohibition against retaliatory actions. The Court of Appeals for the Seventh Circuit affirmed the dismissal of the Title VII claim, but reversed regarding the § 1981 claims, holding that retaliation claims were included within § 1981. The Supreme Court affirmed, holding that § 1981 does include retaliation claims. The Court observed that it had previously held that § 1982 included retaliation claims, and that the Court had long treated § 1981 and § 1982 similarly. The Court also held that the Civil Rights Act of 1991’s revision broadening § 1981 supported the holding that § 1981 included retaliation claims. Dissenting, Justice Thomas opined that the text of § 1981 does not support the holding that retaliation is included within its scope. Justice Thomas observed that retaliation claims are based on discrimination due to conduct, rather than discrimination due to identity, which is the discrimination that is the subject of § 1981.
• Riley v. Kennedy. Opinion of the Court by Ginsburg, J., joined by Roberts, C.J., and Scalia, Kennedy, Thomas, Breyer, Alito, JJ.; dissenting opinion by Stevens, J., joined by Souter, J.. Under the § 5 of the Voting Rights Act of 1965, Alabama was one of several states required to obtain preclearance for certain voting provisions. Alabama received federal preclearance for a provision allowing Mobile County to replace mid-term-departed county commissioners by special election, rather than by gubernatorial appointment; following one such special election, the Alabama State Supreme Court declared the provision in violation of the state constitution, and the state legislature amended the law to reestablish gubernatorial appointment. The Supreme Court held that, because the new law allowing special elections was invalidated after only one use, it never had a chance to take “force and effect” for § 5 purposes, and therefore the reenactment of gubernatorial appointment was not a “change” requiring new preclearance. Justice Stevens dissented on the basis that the Court’s decision did not give the statute its broadest possible scope, as required.