Friday, June 29, 2007

It's Time To Be Uncharitable

Sometimes you read something in the newspaper that is too stupid to be believed. Well, Ellen Goodman has one of those moments today. From a piece entitled The transformation of Justice Ginsburg:

The court ruled against Lilly Ledbetter, the one woman among 16 Goodyear supervisors who was paid far less throughout her career. Tough luck, the court said; discrimination suits had to be filed within 180 days after the pay was set.

This time, Ginsburg not only dissented but called upon Congress to change the law and thereby overrule the court.
[emphasis added]

The court didn't write the law. The legislature wrote the F-ing law. Of course the legislature can go back and change a law so it acts more equitably. THAT'S WHAT THEY ARE SUPPOSED TO DO! That is what conservative jurisprudence has ALWAYS asked legislatures to do. Conservatives don't want the courts writing the law because that isn't their job. If people don't want the 180 day deadline to be a part of the law, so the SC says, then pass a new version of the law that DOESN'T HAVE A 180 DAY DEADLINE! (Yes, I know. Shocking!) So having Congress act on this matter is not "overturning the court" in any way, shape, or form, as it wasn't the Court that put the 180 day deadline in the law in the first place.

Besides, having legislatures revisit old laws is not a bad idea. It is in fact the way things should have always been done. So Ginsburg isn't making some radical new pronouncement here, as Goodman for some unfathomable reason believes. She is just saying that the legislatures have the power to remedy this bad law. I agree with her on that point. The 180 day deadline seems needlessly restrictive and bad public policy to boot. But notice, both of those opinions (A: the deadline is too restrictive, and B: it makes for bad public policy) belong to the political world; the world of committee hearings, public debate, and votes. You know...the democratic process. However, Ginsburg would have preferred to remedy the situation through judicial fiat, which smacks of nothing but her aristocratic pretensions and delusions of liberal grandeur. Ginsburg is not better than the people. Let the people's representatives make the laws. After all, that is the democratic way.


Anonymous said...

Not to dismiss your anger IM (I mean, were you watching reruns of Jon Casey being scored on again?), but Goodman's language may not be as far off as you have suggested. (Which is my polite way of saying: Wrong, Wrong, Wrong!)

This is a quote from Ginsburg's dissent:

"Ledbetter’s petition presents a question important to the sound application of Title VII: What activity qualifies as an unlawful employment practice in cases of discrimination with respect to compensation. One answer identifies the pay-setting decision, and that decision alone, as the unlawful practice. Under this view, each particular salary-setting decision is discrete from prior and subsequent decisions, and must be challenged within 180 days on pain of forfeiture. Another response counts both the pay-setting decision and the actual payment of a discriminatory wage as unlawful practices. Under this approach, each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180-day charge-filing period, are not themselves actionable, but they are relevant in determining the lawfulness of conduct within the period. The Court adopts the first view, see ante, at 1, 4, 9, but the second is more faithful to precedent, more in tune with the realities of the workplace, and more respectful of Title VII’s remedial purpose."

She clearly believes that the court applied the law incorrectly in this case. Following that logic, it's not congress who has erred in the writing, but the majority in the interpretation.

So she isn't saying, "Congress should rewrite the law because it was written badly and needs to be clarified." Rather, she's saying, the Court has ruled incorrectly in this case--please revise the law because of it. While that is not technically "overruling," one could certainly make the argument that the verb is much closer to the mark than your outrage is letting on.

If a person makes a mistake--and you have the power to change that mistake--what are you doing? Overruling? Correcting? Overriding? Slapping down? Given the passage I've just quoted from Ginsburg, how would you revise the sentence? What verb would be preferable?

Ginsburg herself chooses "correct":

"As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII."

Given that sentence, I'm not sure overrule is all that different from what Ginsburg, in fact was saying.

Moreover, Goodman was not even making the claim that Ginsburg's call was a radical new statement, as you suggest:

"So Ginsburg isn't making some radical new pronouncement here, as Goodman for some unfathomable reason believes. She is just saying that the legislatures have the power to remedy this bad law."

Rather, Goodman is making the claim that Ginsburg's making this call, and reading it from the bench, is a shift FOR Ginsburg.

That's her whole thesis--that a once low key judge is becoming much more vocal. Not more liberal, Goodman claims, but more vocal in a court that is shifting radically to the right. Moreover, Ginsburg does not feel it's a bad law--she feels the Court's is a bad reading of the law.

(That's not to mention the fact that your outrage at Goodman picks out one small phrase, while ignoring the thesis of her column)

You're a good man, IM, but I'm seriously concerned about your blood pressure. Is this excess anger because you didn't have any outlet during the NHL playoffs?

The Iconic Midwesterner said...

Right, which only makes Goodman's/Ginsburg's reading of the law silly. Is that an imporvement?

So the 180 day provision was only applicable IF the pay rate was set, but never actually payed even once. On the other hand if a discriminatory wage was set AND payed...there is never a 180 day provision. That is a nonsense reading of the statute, that requires such a tortured logic I throw up my hands.

"Rather, Goodman is making the claim that Ginsburg's making this call, and reading it from the bench, is a shift FOR Ginsburg."

Of course it is a shift for Ginsburg!! Up until now she would have been given the opportunity to do what she wanted and legislate from the bench!