One of the most common criticisms of the EEOC is its heavy-handed litigation tactics, including whether courts can review the EEOC’s decisions to conciliate prior to filing a lawsuit. Under the Civil Rights Act, the EEOC is required to conciliate before suit, but there is arguably wide latitude in what may constitute conciliation within the meaning of 42 U.S.C. § 2000e-5(b). The U.S. Supreme Court had oral argument earlier this week in Mach Mining v. EEOC on just that point.

As noted in a SCOTUS blog following the argument, “[q]uestioning of both sides reflected the Justices’ quest for a workable standard [of judicial review]. The Justices appeared disinclined to agree with the EEOC that its efforts should be insulated from review. But they also seemed unlikely to uphold as searching a review as Mach Mining and other employers seek.” Justice Stephen G. Breyer said that “[i]n my mind, of course, there should be judicial review. There is of everything, just about. But the issue is how much.” Chief Justice John G. Roberts Jr. said he was “very troubled by the idea that the government can do something and we can’t even look at whether they’ve complied with the law.”