Well, I’m not going to beat Amara to death right now, and hopefully I will be back later on with more thoughtful comments on the decision. However, this wouldn’t be much of an ERISA blog if you couldn’t find a new Supreme Court decision on ERISA on it on the day it is issued, so I offer it to you right here. That said, though, here are some initial thoughts. First, the decision, from a practical perspective, says the ruling below cannot stand the way it is, but the plaintiffs can still eventually win by going back and instead putting in the case under the equitable relief prong of ERISA in the manner sketched out by the majority. This makes the ruling a full employment act for the defense lawyers in the case, who are likely to be working on this case for years more; in fact, the concurrence points out that this alternative theory posited by the majority could set the case up for another run before the Supreme Court, after the lower courts have finished with the alternative theory etched out by the majority. Thought about in this light, you have to wonder how many retirees will still be standing to collect any recovery by that point, given the length of time the lawsuit has been going on to date.
Second, Justices Scalia and Thomas come back, in their concurrence, to a point I discussed with regard to LaRue, namely their feeling that these types of cases can be decided as a matter of simple application of the terms of the statute, without more. Frankly, however, this case in particular is an example of one where you can’t possibly decide how this statute, which speaks only in generalities for the most part, can apply without considering what type of gloss can or should properly be applied to the statutory language. Indeed, this is much of what the majority’s opinion consists of: reading the language of the equitable relief prong in light of the proper gloss to apply to it, historically and in light of prior Court opinions. By doing that though, the majority opinion illustrates the mess that the entire line of cases on what is “equitable” relief for these purposes has become in light of the Court’s past rulings in this regard that attempt to define this by looking at what historically represented part of the equity bar. Simply put, there is no justification for basing a decision in 2011, like this one, that affects the retirements of people who will live well into the 21st century and involves a statute that was enacted in 1974, on treatises concerning the equity bench from the 19th century, as the Court ends up doing here. Jurisprudentially, it’s a wrong-headed approach, but the Court’s past decisions have painted them into that corner; this is yet another decision that points out the need for the Court to work its way out of its existing rubric concerning the scope of equitable relief under ERISA and into a more nuanced and modern approach to determining the scope of claims that can be brought under the equitable relief portions of ERISA.