Today at the Supreme Court

Today I had the opportunity to attend oral argument in an age discrimination case before the United States Supreme Court. Today's case, Sprint/United Management v. Mendelsohn, asks whether the 10th Circuit Court of Appeals erred when it appeared to adopt a per se rule allowing the admission of so-called "me too" evidence (i.e., evidence by other employees saying they, too, had been subjected to discrimination.

The questions by the Justices indicated that they were troubled by absolute rules either allowing or prohibiting the admission of "me too" evidence. They are likely to set forth a rule requiring weighing of the probative value of such evidence against the possibility of prejudice. Most of the justices have not tried a case in a long time--and it showed. Justice Breyer even admitted that he had not tried a case in a long time when he was questioning the attorney for the respondent. It would be nice if the next President would nominate justices who had tried a case in the previous ten years. This is one issue in which Rudy Giuliani shines--he knows what it takes to try a case before a jury, and he has promised to make judicial appointments a priority.

It was also noteworthy that the Solicitor General introduced the new Attorney General, Michael Mukasey, to the Justices.