Lady KaGa’s dissent in Genesis HealthCare Corp. v. Symczyk is a work of art.
The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it. The issue here, the majority tells us, is whether a “‘collective action’” brought under the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq., “is justiciable when the lone plaintiff’s individual claim becomes moot.” Ante, at 1. Embedded within that question is a crucial premise: that the individual claim has become moot, as the lower courts held and the majority assumes without deciding. But what if that premise is bogus? What if the plaintiff’s individual claim here never became moot? And what if, in addition, no similar claim for damages will ever become moot? In that event, the majority’s decision—founded as it is on an unfounded assumption—would have no real-world meaning or appli cation. The decision would turn out to be the most one-off of one-offs, explaining only what (the majority thinks) should happen to a proposed collective FLSA action when something that in fact never happens to an individual FLSA claim is errantly thought to have done so. That is the case here, for reasons I’ll describe. Feel free to rele gate the majority’s decision to the furthest reaches of your mind: The situation it addresses should never again arise.
Later, she adds:
That thrice-asserted view is wrong, wrong, and wrong again.
Still, you might think, the majority’s approach has at least this benefit: In a future FLSA case, when an individ ual claim for damages in fact becomes moot, a court will know what to do with the collective allegations. But no, even that much cannot be said for the majority’s opinion. That is because the individual claims in such cases will never become moot, and a court will therefore never need to reach the issue the majority resolves. The majority’s decision is fit for nothing: Aside from getting this case wrong, it serves only to address a make-believe problem.
Kagan’s prose is proof that clerks don’t do all the writing for all the Justices. If they did, all opinions would be such a joy to read.
Justice Ginsburg, please assign more dissents to Justice Kagan. Thanks!
Green Bag Exemplary Writing Nomination, right here.