Justice O'Connor has broken bad again, this time siding with the liberal foursome to achieve good results in Jackson v. Birmingham Bd. of Ed
. O'Connor's opinion holds that Title IX's implied private right of action for discrimination "on the basis of sex" includes a right of action for claims of retaliation. The retaliation alleged in this case was the firing of a basketball coach who complained about the state's unequal treatment of his female athletes. Although Jackson was not being discriminated against on account of his own
sex, the fact that the retaliatory firing was prompted by a complaint about sex discrimination
brings the retaliation claim within Title IX's private right of action, the majority reasons. As Justice Thomas points out in dissent, however, the outcome is not the result of a faithful attempt to interpret the pertinent provisions of Title IX. The finding of a right of action for retaliation in this case amounts to a new, judicially-created "prophylactic enforcement mechanism" with no basis in the text of the statute at hand. The Court is just putting some new polish on an old law, the luster of which has faded with time.
I imagine the majority sees itself as picking up the baton in the last leg of the lawmaking relay. The House, Senate, and Executive are huffing and puffing on the side of the track while Justice O'Connor et al. sprint forward to break the tape. And the result of this strenuous effort? A perfect
statute -- better than Congress intended and the President signed into law. Forget about the fussy formalism of the textualists, the majority should say, look at the result we've given you America and tell us the world isn't a better place?
Justice O'Connor, my thank-you note is in the mail.