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Opinion |  This is what judicial activism looks like at the Supreme Court

The case the court dismissed this week was almost identical. Jason Small, a Jehovah’s Witness, was required by his religion to attend services on Wednesday evenings and Sundays. He worked for a utility company in a position that occasionally required mandatory overtime, and he used his vacation to avoid conflict. When the company rejected his request to take a day off for Good Friday, he still took time off and was penalized by losing two days of pay. He sued on several grounds, including Title VII, and lost in Federal District Court in Memphis.

Confirming this decision, a three-judge panel of the United States Court of Appeals for the Sixth Circuit observed that Mr. Small had not directly contested the company’s claim that the requested accommodation required undue hardship. Two panel judges, Amul Thapar and Raymond Kethledge, who are among the more conservative members of the circuit, wrote a separate concurring opinion – in fact, agreeing with themselves, with an explanation. “Ultimately this case does not involve a challenge to the ‘de minimis’ test,” they wrote. “But litigants should consider such challenges in the future.”

In Mr Small’s appeal to the Supreme Court, his attorneys insisted that “even if he somehow failed to raise the issue as completely as the lower court might have wished His case still deserved Supreme Court review and was a good vehicle for overturning the de minimis standard of the Hardison case. “If the undue hardship issue was somehow taken for granted, the court would have to proceed anyway, as there is no prejudice to either party or court,” the petition says.

Except that is not the way the Supreme Court works. There are rare exceptions, but in general, the court refuses to rule on matters that have not been fully disclosed to the lower court. In fact, Justices Alito, Thomas and Gorsuch conceded it in February last year, when they issued a statement “concurring in denying” a similar case because “this case does not present a good way to come back to Hardison ”. Writing for all three, Justice Alito added, “But I reiterate that consideration of the Hardison question should be undertaken when a petition in a suitable case is presented to us.”

One of those three, Justice Thomas, did not join this week’s dissent. Neither have the other Conservatives in the court, Chief Justice Roberts and Justices Brett Kavanaugh and Amy Coney Barrett. Perhaps the obvious impatience of Justices Alito and Gorsuch, their eagerness to deviate from normal court practice in order to get their hands on a precedent they dislike, was a step too far, even for colleagues who most likely agree with them on the merits of the issue. (Without comment, the court this week also dismissed a second case on the same issue, an appeal from the United States Court of Appeals for the 11th Circuit, Dalberiste v. GLE Associates. The Hardison question was not addressed. clearly raised in this case, Either.)

The plea by the two judges to bring a case is referred to as judicial activism in my book, but that’s only part of the picture. The Hardison decision was a case of statutory interpretation, meaning that if Congress believed the Supreme Court had misinterpreted Title VII in 1977, it had 44 years to change the statute.

This is not a far-fetched scenario. Congress added the religious accommodation provision to Title VII in 1972 in response to an appeals court ruling that upheld a company’s refusal to allow an employee to take Sunday time off. Congress passed the Civil Rights Act of 1991, which President George HW Bush enacted, to overturn several conservative Supreme Court rulings that have created obstacles to Title VII litigation.

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