Let me get this straight -- Lithwick is blaming the "conservative bloc" on the Court for not reading a retaliation provision into a law that Congress, the group that actually wrote the law in the first place, neglected to include? That gets it bass-ackwards. It's not the Court's job to do Congress' job for it. Frankly, wouldn't it have been cheaper and easier to lobby Congress to fix this provision and make it retroactive? Instead, we're treated to nonsense legal arguments such as the declaration that retaliation itself is a form of discrimination.

Just because something is before the Court does not mean that the Court is responsible for it getting there, or is able to fix it. Lithwick mentions in passing that the retaliation provision mysteriously didn't make it into ADEA, but doesn't bother to examine any further. That is simply bad reporting. Either Congress did not want the provision included, in which case the "conservative bloc" is right to not read one in, or Congress messed up, in which the "conservative bloc" is right to remind Congress that it messed up so that Congress can go back and fix it. All the way along, Congress is the one that slammed the door shut on ADEA retaliation lawsuits. Somehow, though, the Court is made the scapegoat for simply acknowledging that fact.

Well why don't we get rid of the appellate courts entirely then! If they can only read a law for the specific words it contains why do we need the judges when we already have the laws!

The fact of the matter is that no law is written perfectly. The courts are needed to insure that a law functions as intended in the context of the real world. To suggest that a law aimed at preventing discrimination cannot be enforced because it lacks a 'retaliation' clause should be absurd to anyone!

Airflorida, it is self-evident that a law addressing discrimination is different from one that addressed retaliation. A retaliation provision in an anti-discrimination law would prevent an employer from taking certain actions after an employee filed a discrimination claim against the employer. It would, obviously, not prevent the employee from filing the claim in the first place. Thus, the absurdity is in your evident misunderstanding of how retaliation provisions work.

Further, as Justice Scalia would be quick to tell you, exactly who are we supposed to talk to in order to discover how a law is "intended" to work? Even if we get every member of Congress and the President into a room together, they would likely come up with many different explanations for how a given law is "intended" to function. Which one is right? All we know for sure is that constitutional majorities passed a certain law. Beyond that, you're getting into some guesswork at best.