Smith: It Wasn't the Court

An interesting point from the Smith v. City of Jackson case is the idea that there was not a majority of the Court on board for the determination that "disparate impact" was all that was required to prove age discrimination. The hopeless four signed Justice Stevens' opinion, but Scalia wrote for himself on the issue, and instead of agreeing with the plurality, said that he was constrained by Chevron to defer to the EEOC's determination.

So, the Supreme Court did not "Remove [the] Hurdle to Suits Alleging Age Bias" (NYT headline) or "ease [the] way for age discrimination suits" (CNN headline). It was, instead, the EEOC, and the Court was constrained to accept the determination.

So we have progress without the Court having to torture statutes and rewrite the Constitution. A novel idea!