Too many non-merits issues in this case. Today's oral arguments [transcript here] in Madigan v. Levin [Briefs at SCOTUSblog] laid bare several reasons why the US Supreme Court most likely will not decide this case on the merits. That is, they won't decide whether a public sector employee can bring an age bias claim directly under the Constitution without following ADEA procedures.
Very little of the one hour argument dealt with the merits.
The Justices pummeled the lawyers with questions about the muddiness of the case:
- The 7th Circuit decided the case on interlocutory appeal, which is allowed for making a decision on qualified immunity, but the 7th Circuit bulled ahead and also decided the ADEA-vs-constitution issue. I've said before: "I'd like to see the Court kick this case back to the 7th Circuit, telling them they jumped the gun. Wait for a trial to take place, and then appeal from a final judgment."
- It looks like Levin was not even an employee, so the ADEA wouldn't apply anyhow, so there is no conflict between the ADEA and the constitution.
- It looks like it is possible that Levin is covered by the Government Employee Rights Act (GERA) instead of the ADEA, which raises a wholly separate question of whether GERA displaces constitutional remedies.
Justice Scalia scolded Levin's lawyer for not pointing out these issues before the Court granted certiorari. Now the Court has to figure out what to do with this case. I suggest scolding the 7th Circuit, and getting this case back to the trial court where it belongs.
More from SCOTUSblog: Argument recap: A bad way to open a Term.