On Wednesday, the Supreme Court decided Helix Energy Solutions Group, Inc. v. Hewitt. The facts of the case are straightforward enough: does a "tool-pusher" who makes more than $200,000 per year, while working on an offshore oil rig, qualify for overtime pay? The law is, admittedly, complex. There is an intricate statutory and regulatory framework at play. I won't try to summarize those twists and turns here. But underlying these legal issues is a normative question: should someone making so much money be eligible for overtime? How would a liberal vote here? How would a conservative vote here?
By a 6-2 vote, the Supreme Court ruled that the employee was not paid on a "salary basis," and was thus eligible for overtime. Justice Kagan wrote a characteristically lucid decision parsing a difficult textual conflict. It is a breeze to read. Justice Gorsuch would have DIG'd the case (more on later). Justice Kavanaugh wrote a short dissent, which was joined by Justice Alito (more on that later as well).
I have been tracking this Texas case for several years as it wound its way through the Fifth Circuit. And I think it is worthwhile to note that six Justices affirmed a a decision of the en banc Fifth Circuit. And that opinion was written by–so we're told–one of the biggest hacks in the judiciary: Judge Jim Ho. Indeed, the Hewitt en banc majority had a heterodox makeup: Ho, Smith, Stewart, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, Oldham, and Wilson. In dissent were Judges Jones, joined by Owen (now Richman), Wiener, Elrod, and Southwick. The Fifth Circuit truly is the most interesting circuit. I flagged this case in my State of the Fifth Circuit Address from last year.
