Sunday, October 19, 2008

Conservative Activism on the Supreme Court

Back when VP candidate Sarah Palin was being interviewed by Katie Couric, Palin was asked about any other specific Supreme Court decisions besides Roe v. Wade that she disagreed with. She was unable to think of any.

I then tried to put myself in the position of trying to answer Couric’s question off the top of my head. Since I am not a legal scholar, I would not have a list of court cases rolling off my tongue without first doing some review of them. But there was one recent decision that would have quickly come to mind in showing how far to the right the Supreme Court decisions had become. I thought of the gender discrimination case brought up against Goodyear and how a woman was systematically discriminated against for a number of years. And the Court knew it, but let Goodyear get away with it!

Ledbetter v. Goodyear Tire & Rubber Co. was decided in 2007 by a razor-thin 5-4 margin that most observers believe was split over ideology. The conservative justices believed that it was important to protect businesses from lawsuits that dredged up discrete acts of discrimination from years ago. The liberal judges felt that acts of discrimination in the workplace that occur over periods of time cannot be traced to a discrete starting time. Often discrimination is a trend that occurs over years. And perhaps most importantly, pay discrimination can be impossible to detect in a timely manner due to the secrecy that surrounds what most people in the private sector earn.

Nonetheless, the Court held that if Ms. Ledbetter didn’t sue within 180 days of when she felt the pay discrimination started to occur, she had no recourse. While this is in line with a conservative priority of protecting the interests of business,
a rare reading from the bench of a dissent by liberal Justice Ginsburg feels that the people who are supposed to be protected by anti-discrimination laws are getting the short end of the stick.

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

And this excellent article from Slate goes further by asserting that “Ledbetter basically grandfathers in longtime pay discrimination.”

Regardless of how one feels about this decision, I think we need to recognize that many if not most of the important decisions handed down by the Supreme Court are decided by ideology. Therefore, if we want decisions that we feel are right, it makes perfect sense to vote for presidents who will pick Justices based on our ideology (in addition to competence, of course). We know that Democratic presidents tend to pick more liberal thinking judges and Republican presidents pick more conservative thinking judges. In my view, there’s nothing wrong with that as long as someone is not selected who is regarded as extremely one way or another (like Robert Bork who was ultimately rejected by the Senate).

The problem that gets in the way is the conservative view that liberal judges are ‘legislating from the bench’ while conservative judges are using ‘judicial restraint’. An excellent op-ed piece that supports this conservative viewpoint is in this link.

So when liberal judges make decisions that conservatives don’t like, it is often called ‘liberal activism’. I’m OK with this as long as we can agree on also calling the other side ‘conservative activists’ when they make decisions based on their ideology. I feel that the decision in Ledbetter is a prime example of conservative activism. For an op-ed piece that supports this liberal viewpoint, see this link.

John McCain openly says that he is in favor of overturning Roe v. Wade. But the only way to ensure this is to select judges that agree with his ideology. That’s fair enough but he obscures this like most other political candidates do by babbling about how it’s all about ‘qualifications’ and that he would have no ‘litmus test’ on ideology.

But moderator Bob Schieffer cut through the BS in the latest third presidential debate:

McCain: Sen. Obama voted against Justice Breyer and Justice Roberts on the grounds that they didn't meet his ideological standards. That's not the way we should judge these nominees. Elections have consequences. They should be judged on their qualifications. And so that's what I will do.

I will find the best people in the world -- in the United States of America who have a history of strict adherence to the Constitution. And not legislating from the bench.

Schieffer: But even if it was someone -- even someone who had a history of being for abortion rights, you would consider them?

McCain: I would consider anyone in their qualifications. I do not believe that someone who has supported Roe v. Wade that would be part of those qualifications. But I certainly would not impose any litmus test.

So saying that someone who doesn’t agree with his view on Roe v. Wade is unqualified doesn’t constitute a litmus test? To his discredit, Barack Obama also said that he would not impose a litmus test. But this is also BS since there is no way that he would ever appoint a judge for the Supreme Court that was openly pro-life no matter what that person’s qualifications were.

But later in the debate, Obama clarifies his position:

I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I'll just give you one quick example. Sen. McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination.

For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it's taken you too long to bring this lawsuit, even though she didn't know about it until fairly recently.

We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it.

I think that it's important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that's the kind of judge that I want.

Me too. When nobody was willing to stand up to school segregation, Brown v. Board of Education came along. Griswold v. Connecticut provided protection from government laws that would unduly invade our privacy. And although the controversial Roe v. Wade has been cited by conservatives as an example of liberal activism, liberals can argue that it is simply reaffirming our protection of privacy as already decided by Griswold. By this way of thinking, overturning Roe would be an especially egregious example of conservative activism.

While issues like the economy and health care are rightly at the top of the list of most pressing issues for voters, the importance of the future Supreme Court vacancies the presidential winner will likely have to fill during his upcoming term cannot be overestimated. I can hardly wait for Election Day to finally get here!


Libertarian1 said...

If I may comment, your post is a perfect example of what we conservatives call "judicial activism". In the Ledbetter case Congress wrote a law and the President signed it stating that the complaint had to be made within 180 days. Not 181 days etc.
The problem you see is that if SCOTUS actually obeys the law as written the results are unfair. So you propose that the court break the law so as to achieve your goal of justice. The act of violating the written law to achieve a partisan goal is what we call activism.
The solution is to change the law by legal means ie Congress and the President. BTW, that is exactly what was done here.
It is not the job of the courts to make law but to follow and interpret the law.

Tony Polombo said...


The main bone of contention in Ledbetter centers on when the clock starts for the 180 day period during which the complaint must be made. As pointed out in the link to the Slate article, when there is an ongoing trend of discrimination taking place, it is most difficult to determine when a discrete action occurs that definitively starts this 180 day clock.

So perhaps we can agree that the law as written was not specific enough on this point. Those of us on the liberal side of the argument feel that the Supreme Court has a duty to then provide an interpretation of when the 180 day clock starts in a way that preserves the spirit of the law. It is not enough to just say that the law has to be rewritten. The people who feel they have already suffered from discrimination also need to have their grievances addressed in a fair way.

Ms. Ledbetter felt that since the discrimination was still ongoing when she filed, the 180 day clock had not started. In my view, insisting on starting the clock way back before Ms. Ledbetter even knew of or could reasonably prove a case of discrimination provides a huge disadvantage for those in her situation which violates the spirit of the law.

Thank you for taking the time to write and offer your comment.