Thread by @steve_vladeck

The Solicitor General has responded to this #SCOTUS order, which follows up on statements he made at oral argument on Jan. 15:

supremecourt.gov/DocketPDF/18/1…

The long and short of it is ... not good. The SG _did_ misstate the law, but doesn't acknowledge—or apologize for—doing so:

https://twitter.com/steve_vladeck/status/1218277772864389120

The dispute is over the availability of other remedies _besides_ the ADEA for the kind of claim advanced by the Petitioner in Babb.

Here is the Solicitor General at the oral argument in response to a question from Justice Kavanaugh:

supremecourt.gov/oral_arguments…

In his rebuttal, @lathamwatkins partner Roman Martinez accused the Solicitor General of misrepresenting the law on this point.

This exchange is almost certainly what prompted the Justices to issue the unusual order requesting supplemental briefing on exactly this question...

And here's the Solicitor General's formal response, which was filed Thursday afternoon:

supremecourt.gov/DocketPDF/18/1…

The rest of the letter argues, at length, that internal mechanisms exist to prevent such violations from occurring or to redress them when they do.

That's an important argument for the broader legal issue in this icase, but it rather buries the pretty big lede here:

The SG misrepresented the law at oral argument; got called out for doing so; acknowledged that the opposite of what he said at argument is true; but didn't:

(1) Acknowledge that he misstated the law; or

(2) Apologize to the Court for doing so.

This is pretty ugly...

/end