Posted by: bridget | 31 May 2007

Love is Blind, Especially with the NYT

The NY Times began its love-fest for Justice Ginsburg and, of course, it’s tomato-throwing towards the right wing of the Court. First, the NYT lauds Justice Ginsburg’s oral dissents in Carhart and Ledbetter.

In her past dissents, both oral and written, she has been reluctant to breach the court’s collegial norms. “What she is saying is that this is not law, it’s politics,” Pamela S. Karlan, a Stanford law professor, said of Justice Ginsburg’s comment linking the outcome in the abortion case to the fact of the court’s changed membership. “She is accusing the other side of making political claims, not legal claims.”

Well, is that a surprise? The outcome of Plessy changed when the membership of the Court changed, too. I guess we should overturn Brown v. Board. Snarking aside, it is clear that justices view their roles differently (either as interpreters of the law as written or as philosopher-kings), and take different approaches to statutory interpretation, the extent of the Bill of Rights, and the existence (or lack thereof) of penumbras. The fact that a differently-composed Court would have reached a different decision is a nearly universal truth, one which does not weigh upon the validity of either the majority or the dissent.

Adding irrationality to insult, it criticises the majority’s holding in Ledbetter, while taking the majority to task for not deferring to lower courts and to the EEOC.

“In dissent, Justice Ruth Bader Ginsburg noted that there were strong precedents supporting Ms. Ledbetter. The Supreme Court ruled in a similar race discrimination case that each paycheck calculated on the basis of past discrimination is unlawful under Title VII. The courts of appeals have overwhelmingly agreed. So did the E.E.O.C., the agency charged with enforcing Title VII.”

In case the NYT missed the memo, the Court is obligated to defer to the Constitution and its prior holdings only. It is no more obligated to take seriously the holdings of lower courts than is a boss to a subordinate. Furthermore, Chevron deference does not apply in legal interpretations. The Court is obligated to interpret relevant statutes on its own.

The NYT continues its ravings:

“The court’s new rules will make it extraordinarily difficult for victims of pay discrimination to sue under Title VII. That is not how Congress intended the law to be enforced, merely how five justices would like it to be”

First of all, there is no evidence that Justice Alito, nor the other four members of the majority, want to prevent women from bringing discrimination claims. Second, many legal scholars consider the relevant section of Title VII to be badly written. Congress is presumed to desire whatever result a normal reading of the statute would bring. If discriminatory pay practices do not fit within Sec. 2000(e)(5), Congress can carve out a separate rule (such as extending the SOL to five years). Alternatively, it can implement a discovery rule (such as giving plaintiffs 180 days from the time when they should have known about the discrimination). Congress, not the Supreme Court, is the proper body to re-write the law and decide how to best handle the various policy considerations that would accompany either rule.



  1. But Bridget, when Ginsburg doesn’t line up with the Constitution it isn’t political, it’s . . . it’s . . . oh, wait, it is political!

  2. Neil,

    Good point. It cracks me up how the PBA decision is “political,” when about 200 years of judges would have recognised it as a good decision and some judges over the past 30 years would have said differently.

    The Court is not a mechanism to correct every perceived social ill. It’s like using a roller brush to correct an error in a Monet.

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