Who You Calling “Fanciful”?

A recent U.S. Supreme Court decision expands whistle-blower protections to employees of private contractors, bolstering the anti-corruption principles of the 2002 Sarbanes-Oxley Act. The ruling was widely reported and noteworthy based on its potentially far-reaching implications.

But the 6-3 decision also highlighted an important reality of the court that often is forgotten: both the majority and the dissent were written by justices that are often assumed to always be on the same side. Justice Ruth Bader Ginsburg penned the opinion for the majority, while Justice Sonia Sotomayor wrote the dissenting opinion. Both are generally considered members of the Court’s more liberal wing. 

The case involved allegations by two former workers at Fidelity Investments, who were employed as subcontractors by units of privately held FMR LLC. The units provide investment advice and management services to publicly traded Fidelity mutual funds. Both alleged retaliation resulting from their complaints about the company’s alleged wrongdoing. 

Fidelity Investments argued that the workers couldn’t bring claims under Sarbanes-Oxley because they weren’t employees of a publicly traded company. A federal appeals court agreed, but the Supreme Court reversed that decision.

Justice Ginsburg said that providing whistle-blower protections to mutual fund investment advisers “is crucial to Sarbanes-Oxley’s endeavor to protect investors.” In her opinion, she noted that Congress passed the law to strengthen corporate governance after the accounting scandals at companies such as Enron Corp.

Justice Sotomayor, writing for the minority, which included Anthony Kennedy and Samuel Alito, called the decision “stunning.” She suggested it would extend whistle-blower protections to office cleaners, day laborers and even baby sitters who work for people employed at public companies.

Justice Ginsburg didn’t take that lying down, writing that the dissenters were “indulging in fanciful visions of whistle-blowing babysitters and the like.”

Does this mean that the two Justices will no longer vote together on big cases? Does it mean that there is something personal between the two? 

No, on both counts. This dynamic happens all the time. Supreme Court Justices are not shrinking violets, and good jurisprudence demands that the Justices express their views clearly and forcefully for the sake of both lawyers and the lower courts that must rely on and interpret these decisions. It’s part of the job. 

Posted: 3/31/2014 12:00:00 AM by Editor | with 0 comments

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Thanks for stopping by On the Merits, the first blog from the Texas Center for Legal Ethics. On the Merits will take a close look at significant legal stories with an eye toward addressing the legal myths and misconceptions that turn up in news stories, movies, TV programs, websites, anonymous emails and other forms of mass communications. Our goal at On the Merits is to provide readers with a thoughtful examination of what the media and others are saying about the legal profession and to apply the frequently-absent context of how the legal system actually works.

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