. >> gross involved the age discrimination and employment act or adea.ss, you could bring in age discrimination suit whenever you could show that age was one of the factors an employer considered in choosing to fire you. when the supreme court agreed it hear the case, it said it would consider just one question, whether you needed direct evidence of age discrimination to bring this kind of lawsuit or whether indirect evidence would suffice. that's the issue. they said they would consider when they took the case. but, when the supreme court handed down its decision, it ruled on a much larger matter. whether a worker could bring a suit under adea if age was only one of several reasons for being demoted or fired. the supreme court barred these suits saying that only suits alleging that age was the determinative factor for the firing, only those could be brought under the adea. this change has significantly eroded workers rights but making it harder for them to defend themselves from age discrimination, included any fired just before they would have seen a l

congress was compelled to, in a sense but not on adea? >> i don't like characterizing the reasons for why congress acts. >> let me jump ahead to something. yesterday, a member of this committee asked you a few times whether the word abortion appears in the constitution. you agreed that, no, the word abortion is not in the constitution. are the words birth control in the constitution? >> no. >> are you sure? >> yes. >> are the words privacy or the word privacy in the constitution? >> the word privacy is not. >> sceptors colsenators cole, feinstein raised the issue of privacy. do you believe the constitution maintains a fundamental right to privacy. >> it maintains certainly rights as recognized for 90 years, certain rights under the liberty provision of the due process clause that extend to the rights of privacy in certain situations. the cases started with a recognition that parents have a right to direct the education of their children and that the state could not force parents to send their children to public schools or to bar their chi

alleging that age was the determinant factor for the firing, only those could be brought under the adea. this change has significantly eroded workers' rights when making it much harder for workers to defend themselves from age discrimination including any firing just before they would have seen a large increase in their pensions. you weren't fired because you were told, you are fired because your pension is planned to increase soon. so this is a big deal. when you go to court to defend your right, you have to know what rights you are defending. the parties in the gross the case felt they were talking about what kind of evidence was necessary and discrimination suit, then the court just said no, we are banning the that kind of suit altogether. i think that's on a fair to everyone involved. it's especially on fair to the man who's trying to bring the discrimination suit. so let me ask you a couple questions on this. first, as an appellate court judge, how often have to decide a case on an argument or a question that the parties have not briefed? >> i don't think i have because to the exte

the court in an opinion that surprised quite a few people actually said that because it's not in the adea and we have some questions about whether we were right in the first place when we read it into title 7 before the act, that we're simply going to say we're not going to extend it to other acts unless there's a clear indication that it was intended. obviously, in the firefighters' case amici had suggested this mixed motives case, and we had, you know, held it off like the plague, but it was quite a shock, and i think far reaching and i'm not sure people were really expecting it. oral argument clearly was hostile towards mixed motives, but before that i'm not sure people were really strongly thinking the court would go that way. >> what might you say was an underrated case of the term, something that's going to have long-ranging impact that's not really getting the play in the media? >> the case about the suit against the attorney general, john ashcroft, and the fbi directer, robert mueller, about the use of discriminatory mote i haves in -- motives in bringing about post-9/11 decision

court in an opinion that surprised quite a few people actually said that because it is not in the adea and we have questions about whether we were right in the first place when we've read it into title vii in the act we are simply going to say we are not going to extend it to other acts unless there is clear indication that it was intended. obviously in the firefighters' case the suggested this mixed motives case and we held it off like the plague, but it was quite a shock and i think far reaching and i am not sure if people were really expecting it. oral argument was hostile towards mixed motives but before that i am not sure people were strongly thinking the court would go that way. .. post-9/11 decision making. and saying those suits could not be brought. the court applied a pleading standard, a rule of pleading what can be in a complaint, what needs to be in a complaint, to survive a motion to dismuss. they took it from the antitrust area and imported it from the and they imported into this area of its a. it will probably this is homicide case from the supreme court term except the

the court -- an opinion that surprised quite a few people, actually, said that because it's not in adea questions about whether we were right in the first place when we read it into title 7 before the act, that you're simply going to say we're not going to extend it to other acts. in the firefighters' case, it was suggested that this makes the case. we had held it off like the plague. but it was quite a shock. i think far-reaching. i'm not sure if people were really expecting it. oral argument clearly was hostile towards mixed motives, but before that i'm not sure people were really strongly thinking the court would go that way. >> what might you say was an underrated case of the term, something that's going to have long-ranging impact that's not really getting a lot of play in the media? >> the case about the student against the attorney general john ashcroft and the f.b.i. director, robert muller, about the juice of discriminatory motives in bringing about post-9/11 decision making. and saying those suits could not be brought. the court applied a pleading standard, a rule of pleading