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Supreme Court Takes a 'DIG' at Age Discrimination

It was over before it began.

supreme court

Last week I wrote here about Madigan v. Levin, an age discrimination case before the Supreme Court. I explained that the oral argument didn't seem to go so well for Harvey Levin, who seeks to establish that plaintiffs complaining of age discrimination can bring both constitutional and Age Discrimination in Employment Act (ADEA) claims.

Supreme Court watchers expected a decision in the case before June, probably sooner. "Sooner," as it turned out was right. We've already heard from the Court, but we didn't get a decision. Instead, it dismissed the case as "improvidently granted."

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That, in legal lingo, is known a"DIG." Some would say it's merely a statement that the justices chose not to decide the case and probably never should have accepted the appeal. But Supreme Court junkies know the real scoop: It's egg on the Court's face. DIGs are rare because the justices are very, very careful about how they decide to hear cases. Think about it: If you were a Supreme Court justice, how would you feel about having to admit you made a mistake? That's what a DIG is; it's the Court admitting - albeit in one sentence and in sort of formal language - that it screwed up. Of course, the justices don't have to tell us just how they screwed up, and they won't.

But what does their mistake mean for Harvey Levin, the 61 year-old plaintiff in the case? Well, that's unclear. Normally, when the Court DIGs, the decision of the last appellate court stands. In Levin's case, that would be the opinion of the Seventh Circuit Court of Appeals, where Levin won big; it held that he could still sue under the U.S. Constitution even if he lost under the ADEA. And the Supreme Court's DIG did not vacate, or cast aside, that ruling. Nevertheless, now Levin's case will have to go all the way back to the trial court and presumably go forward from there.

For the rest of older America, the DIG is a missed opportunity, as Dan Kohrman, a senior AARP attorney, commented last week. Now the Court won't have an opportunity to declare that Americans who are covered under the ADEA also have constitutional claims. For that we will have to wait for another, similar case to make its way to the nation's highest court - and that might be many years down the pike.

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