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The Late Justice Scalia and the Development of ERISA Jurisprudence

As is our custom when a Supreme Court Justice leaves the bench, this newsletter will pause for a look back at Justice Antonin Scalia's employee benefits legacy. This is the first time since that tradition began that the Justice in question died in office, and did so very close to the end of our Midwinter Meeting. It is thus a bittersweet task. Regardless of whether you agreed or disagreed with his viewpoints, he did add some wit and eloquence to even the driest of cases. His passing also means the end of this iteration of "the usual five versus the usual four" decisions though another variant may well lie ahead.

We will begin with longevity. Thirty years as a Supreme Court Justice is a long career. How long? The First ERISA case he participated in was Mackey v. Lanier Collections Agency and & Service, 486 U.S. 825 (1988). Not surprisingly, it was a 5-4 decision. It was also a case in which Justice Scalia joined the dissenters.

He wrote for the majority in only six ERISA cases spanning his tenure. See Mertens v. Hewitt Associations, 508 U.S. 248 (1993); Local 144 Nursing Home Pension Fund v. Demisay, 508 U.S. 581 (1993); Egelhoff v. Egelhoff, 532 U.S.141 (2001); Great-West Life v. Knudsen, 534 U.S. 2004 (2002); Kentucky Ass'n of Health Plans v. Miller, 538 U.S. 239 (2003); and Beck v. PACE Intern. Union, 551 U.S. 128 (2007). Although relatively small in number, they were all consequential. Moreover, with the possible exception of Knudsen, they all actually resolved questions without need for a follow-up opinion in a subsequent court term.

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