Supreme Court Justice Ruth Ginsburg made a speech from the bench recently, that points out the fundamental difference in viewpoint between law-abiding and lawbreaking judges. We should probably thank her for so explicitly identifying her misconceptions of what the Court's job is.

There's a Federal law saying that people can sue their employer for wage discrimination based on sex. But only for events that happened within the last 180 days. Sounds like sort of a statute-of-limitations thing, I guess. Things that happened more than 180 days ago, can't be sued over, says the current Federal law.

A woman sued her employer for a record of many years of such pay discrimination. In a 5-4 decision, the Supremes said she couldn't sue, because she couldn't prove any such incidents happened within 180 days of when she first sued.

Ginsburg was in the minority, and said that it was a wrong decision, because the law should have been written to allow more earlier incidents to be included. She wanted the Court to rule as though the law WERE written that way, even though it clearly wasn't.

Thus, Ginsburg showed that she believed the Courts' job was to literally change the law and grant the woman her suit, against the current law as written. The majority said that that was NOT the courts' job, it was Congress's job to decide how the laws should be written. And in this case it was Congress who should change the law, if they saw fit to do so. Only if a law came into conflict with a higher law (the Constitution in this case), could the Courts step in. And this law did not conflict.

EXCELLENT decision by the Supremes. I'm sorry the woman got the shaft - it sounds like she genuinely was discrimiated against. But Congress has to change the law, to bring about a just result - NOT the courts. Good job by the Supremes (five of them, anyway) in resisting the temptation to change the law themselves.

The other three Justices signed on to Ginsburg's mistaken dissent. And so showed themselves unqualified to be judges in any court in the land.

Thank you, Justice Ginsburg, for ferreting out and exposing the lawbreaking Justices in the Supreme Court. Too bad you're one of them.

One of George W. Bush's most significant legacies, will be that he replaced lawbreaking judges such as Sandra O'Connor, with law-abiding ones like Roberts and Alito. And he still has 1-1/2 years of his term left, in which Stevens and/or Ginsburg might retire.

We can only hope.

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Over Ginsburg's Dissent, Court Limits Bias Suits - washingtonpost.com

Over Ginsburg's Dissent, Court Limits Bias Suits

By Robert Barnes
Washington Post Staff Writer
Wednesday, May 30, 2007; A01

A Supreme Court once again split by the thinnest of margins ruled yesterday that workers may not sue their employers over unequal pay caused by discrimination alleged to have occurred years earlier.

The court ruled 5 to 4 that Lilly Ledbetter, the lone female supervisor at a tire plant in Gadsden, Ala., did not file her lawsuit against Goodyear Tire and Rubber Co. in the timely manner specified by Title VII of the Civil Rights Act of 1964.

The decision moved Justice Ruth Bader Ginsburg to read a dissent from the bench, a usually rare practice that she has now employed twice in the past six weeks to criticize the majority for opinions that she said undermine women's rights.

Speaking for the three other dissenting justices, Ginsburg's voice was as precise and emotionless as if she were reading a banking decision, but the words were stinging.

"In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination," she said.

Last month, Ginsburg rebuked the same five-justice majority for upholding the federal Partial Birth Abortion Ban Act and for language in the opinion that she said reflected "ancient notions about women's place in the family and under the Constitution -- ideas that have long since been discredited."

Yesterday she said that "Title VII was meant to govern real-world employment practices, and that world is what the court today ignores." She called for Congress to correct what she sees as the court's mistake.

In a case that Justice Samuel A. Alito Jr. said was easily decided on the statute "as written," her statement from the bench was noteworthy.

Marcia Greenberger, co-president of the National Women's Law Center, said Ginsburg's attention-getting dissents are a "clarion call to the American people that this slim majority of the court is headed in the wrong direction." She noted Ginsburg's background as a feminist legal activist who helped establish women's legal rights and added: "To see them being dismantled is especially troubling."

While Greenberger and others said the court's decision in Ledbetter v. Goodyear Tire and Rubber Co. was a "setback for women and a setback for civil rights," business groups applauded the "fair decision" that, in the words of the U.S. Chamber of Commerce, "eliminates a potential wind-fall against employers by employees trying to dredge up stale pay claims."

A jury had originally awarded Ledbetter more than $3.5 million because it found "more likely than not" that sex discrimination during her 19-year career led to her being paid substantially less than her male counterparts.

An appeals court reversed, saying the law requires that a suit be filed within 180 days "after the alleged unlawful employment practice occurred," and Ledbetter could not prove discrimination within that time period. She had argued that she was discriminated against throughout her career, receiving smaller raises than the men received, and that each paycheck that was less was a new violation.

Alito wrote for the majority that "current effects alone can't breathe life into prior, uncharged discrimination." He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. Thomas is a former chairman of the Equal Employment Opportunity Commission.

"We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented . . . within the period prescribed by the statute," Alito said.

Robin Conrad, executive vice president of the National Chamber Litigation Center, said: "If the court ruled the opposite way, employers could have been hauled into court on decades-old claims of discrimination."

But Ginsburg, joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer, said the decision sets up a sometimes impossible barrier. "Pay disparities often occur, as they did in Ledbetter's case, in small increments; only over time is there strong cause to suspect that discrimination is at work," she wrote.

Even when unequal pay is discovered, she wrote, women may be reluctant to go to federal court over small amounts: "An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably may be anxious to avoid making waves."

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The Constitution isn't perfect, but it's better than the system we're using now.

Amazing that these liberal judges think it's their duty to create law. Of all people they're supposed to know that's not their job. Bushes greatest legacy will indeed be replacing those judges with ones who'll interpret law, not make it.

Varus

I'm afraid that is exactly wrong. Ginsburg's dissent points out the disagreement is in the interpretation of what constitutes a violation of Title VII.

We need to remember something about the bush/reagan appointees to the court. Although many were up in arms over these justices' dim view of reproductive and privacy rights, it has always been the primary goal of republican presidents to appoint judges who are pro business. If they also want to dictate people's sex lives and if they also view police powers as sacred that's just gravy.

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A nation of slaves is always prepared to applaud the clemency of their master who, in the abuse of absolute power, does not proceed to the utmost extremes of injustice and oppression.
Edward Gibbon

You have no idea what frivilous lawsuits are doing to this country. H*ll one of the reason I relocated from south texas is because every mexican we'd insure would turn around and sue. Actually had an employee sue for lying about hurting herself opening the door to the office one morning. Fortunately the private investigator found out differently. Oh and there's a reason a male business owner should never be alone in a room with a female employee. Believe it or not some women are vindictive.

If someone can't figure out if they've been discriminated against or not in six months that's their own stupidity.

Varus

(snicker) versus what?

Pro communist?

I guess you just hang around waiting for manna to fall from heaven?

"pro business" LMAO

. . . unless the same judges are conservative activists.

For example, many conservatives who go Kool Aid alleging 'activism' by judges screaming for strict constructionism whenever they see a decision by liberals do an about-face and cheer other decisions such as one mentioned in the article:

Where is the Constitutional authority for the federal government to pass such an act? Upholding that law, IMO, was conservative activism by the same logic. The general claim by conservatives decrying the 'activism' of Roe is that the matter is a states' rights issue under strict construction. If so, the federal courts and federal government ought to be fully out of the subject.

Well, I would agree that under a rigid, strict adherence to originalism, without ever invocating stare decisis you would be correct, that the PBA ban would be outside of the Federal Government's authority to regulate. However, the invocation of stare decisis is not an ala carte menu. The case law and jurisprudence under which the Federal Government regulates Partial Birth Abortion is the same case law which permits countless other things beloved by the left (Minimum wage, local environmental issues, workplace safety, the entire FDA, education, etc., etc.).

An originalist who would strike down PBA as being extra-constitutional would also be required to do the same for all of these issues. My guess is the 99.9% of the people who charge them with hypocrisy for NOT ruling against PBA would start foaming at the mouth if they applied the exact same standards and ignored stare decisis in all those beloved liberal busy-body programs.

UNTIL the court overturns the justification for ALL of those Federal Encroachments, I see no reason that conservatives should unilaterally disarm on their issues while being forced to play in what is still largely a Constitutional sandbox filled with anti-originalist sand.

Furthermore, I am willing to bet that if you polled liberals and conservatives and asked each of those groups how strongly they would support getting the Federal Government (including the courts) 100% out of the abortion business, leaving it completely and utterly up to the states to decide for themselves, you would probably find conservatives far more readily accepting of that than liberals.

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

My post was about the continued payment of low wages based on sexual discrimination being considered a fresh violation of Title VII. You seem to have gone off on a completely unrelated rant.

I really don't see where mexicans or the intelligence of an employee or being alone with a woman have anything at all to do with this case.

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A nation of slaves is always prepared to applaud the clemency of their master who, in the abuse of absolute power, does not proceed to the utmost extremes of injustice and oppression.
Edward Gibbon

You're a very funny person. Especially that snicker in parentheses. That cracks me up every time.

Many people consider the antithesis of pro business to be pro worker. I hope that clears things up for you. If not, feel free to ask. But leave the snickers and sarcasm out next time. I can't type a legible response when I'm laughing so hard.

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A nation of slaves is always prepared to applaud the clemency of their master who, in the abuse of absolute power, does not proceed to the utmost extremes of injustice and oppression.
Edward Gibbon

It is absolutely, irrefutable that one of the requirements of a Title VII suite that it must be filed with the EEOC withing 180-300 days (depending on the state):

The majority in this case, based on clear precedent, ruled that the "unlawful employment practice" had to be a discrete act, and not merely the ongoing effects OF a discrete act. In otherwords, the unlawful action occured each time a new pay was established, NOT everytime a paycheck was subsequently recevied BASED on that new pay.

Is this a reasonable interpretation? Well, I believe it is, and my question for those who believe that it is not, that it would be equally reasonable to assume that the clock on the 180 to 300 days time limitation begins each and every time there is a tangible ongoing impact resulting from the discrete act, can you think of any situations in which there would NOT be ongoing impact of discrimination however long before the initial decision was made? I would suggest that even if you could, it would only be in the most minute percentage of cases, effectively interpreting a part of the statue (the 180-300 day deadline) as being virtually meaningless in practice....and therefore NOT an equally reasonable interpretationl.

For example. You apply for a job, are turned down because you are a woman, as a result you go and find another job that pays less. Does the fact that you are being paid less ten years down the line than you otherwise would have been had that company not discriminated against you give you a right to sue under Title VII after all that time? NO, you have 180-300 days to file, after that, you are SOL.

And please, remember that we are discussing a LAW, and not our own individual notions of fairness and justice.

__________________
"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

To read the law in such a manner as to recognize the ongoing IMPACT of a discrete act as being a "fresh violation" would basically eliminate what is clearly a statutory deadline in practice. Hence, it is not even close to being as reasonable an interpretation as the majority's. Furthermore, the majority had the advantage of being on the side of precedent:

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

Absolutely. And nothing in the dissent says otherwise - at least not that I saw but I've only skimmed it so far.
Ginsburg points out that the opposite interpretation better reflects precedent (the case cites are in the dissent). I also believe she is right that it more clearly reflects the intention of the legislation. And the legislation was passed by a democratic majority intent on preventing this kind of discriminiation - not a republican majority intent on protectoing business owners.

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A nation of slaves is always prepared to applaud the clemency of their master who, in the abuse of absolute power, does not proceed to the utmost extremes of injustice and oppression.
Edward Gibbon

Ginsburg does not argue that the payment of substandard wages is the impact of a violation. She claims it is an act. She cites Bazemore "“[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.”" Bazemore is en point because it deals with this exact situation - a weekly paycheck. The other cases are less relevant because they deal with other aspects of employment.

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A nation of slaves is always prepared to applaud the clemency of their master who, in the abuse of absolute power, does not proceed to the utmost extremes of injustice and oppression.
Edward Gibbon

The case cites from the majority opinion are most definitely NOT from the disents of the cases they sight, the United Air Lines case cited Justice Stevens opinion FOR THE COURT (aka the MAJORITY). And while none of the precedents may be a perfect fit (few cases before the court have identical fact patterns to precedents) each and every one of them is in favor of interpreting the law and its clear deadlines as constrained by discrete acts, and not ongoing impacts of such acts.

Furthermore, citations from disents have NO precedential value, as they were not the holdings of the court.

If it is reasonable to conclude that ongoing IMPACT is a grounds for a Title VII claim, then the deadline clearly established (thus more clearly intended than any other unwritten "intentions") would be completely meaningless in the overwhelming majority of cases. How is it consistent with not only the intent, but the clearly articulated requirements of the statute to give it an interpretation that virtually ignores any substantive meaning of the deadline?

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"It's a good feeling to shoot a bad guy. Something you democrats would never understand. Americans are homesteaders, we want a safe home, keep the money we make, and shoot bad guys!"

----Denny Crane

A quality post with quality points as usual when we discuss these matters.

Insofar as stare decisis being an a la carte menu, liberals and conservatives judges do just that often times depending on what direction and outcome they desire with a few, like Justice Thomas giving it little weight even as a personal policy.

I don't think a judge who would strike down the PBA would have to strike down all the others things you mentioned categorically (but maybe depending on the programme at issue). The Commerce Clause has been given great flexibility in that regard back to early seminal cases like Gibbons v. Ogden. Much of those subjects clearly deal with that subject. The more tangetical and needing to bend over backwards to squeeze something into that subject, the greater risk that something ought to be excluded from its purview.

Yeah, I would bet the same, although many might regret that later on and change their stance because they may wind up getting even less with certain issues. Classical liberals (libertarians) dislike authority whilst social progressives certainly won't care for originalism and strict const