There was a time when Supreme Court justices peered into federal statutes outlawing discrimination and found between the lines the right of the aggrieved to take his complaint to court. What good was the law, they reasoned, without a means to enforce it?
Those, Justice Antonin Scalia said last week, were “the bad old days.”
The increasingly conservative court has said often of late that it is getting out of the business of finding a right to sue that is not explicitly stated in the law — what lawyers call an “implied cause of action.”
Two discrimination cases that the court heard last week, both concerning retaliation, made plain that a sizable number of justices are deeply resistant to finding such rights and to expanding those it previously recognized.