Supreme Court- Longtime Enemy of Civil Rights
The NY Times has an article about the proposed Ledbetter bill to reverse the decision by the Supreme Court which severely restricted the ability of civil rights plaintiffs to file discrimination lawsuits. Here's a reality that goes against conventional wisdom-- the problem of Congress having to reverse decisions by the Court hostile to civil rights is nothing new. From the article:
In 1883, the Supreme Court struck down a law that barred racial discrimination by hotels, theaters and railroads, saying Congress had exceeded its power. In 1988 and 1991, Congress expanded civil rights protections that had been curtailed by the Supreme Court.In September, Congress repudiated several Supreme Court decisions that had undercut the Americans With Disabilities Act.
"There's a historic pattern of the court's being hostile to civil rights statutes and Congress stepping in to overturn those narrow court rulings," said Deborah L. Brake, a law professor at the University of Pittsburgh.
Many liberals have an unjustified faith in the courts as protectors of minority rights based on a few short years during the Warren Court era of the 1950s through the very early 1970s. Even then, most real gains in civil rights came through Congressional action, but the era was a complete aberration, since the Supreme Court has spent most of American history as the main enemy of civil rights and the defender of elite interests, including business interests that had no desire to see individuals with greater ability to sue to protect their rights.
But let me emphasize a point worth stressing-- historically, it was the Congress that enacted Reconstruction civil rights laws, while it was the Supreme Court, not the elected branches, that gutted them. The NY Times article mentions the 1883 decision that overturned one Reconstruction era civil rights law, but probably a more critical decision was the 1876 Cruikshank decision by the Supreme Court (which I discussed in this post and in more detail in this paper I coauthored) which overturned the conviction of Klan-style mass murderers on the basis that the federal government could not punish private discrimination under the 14th Amendment-- even discrimination backed by violence and murder.
Courts are useful for enforcing statutory rights but the myth that they are generally the friend of progressive policy, particularly the idea that they are the bastion of protecting civil rights historically, has made liberals often too timid in attacking the Supreme Court for fear of undermining its "authority." But the reality is that the Court is just one more political institution in our system, and often the most conservative one, so progressives should feel far freer to judge it on political terms, scrutinize nominees in political terms, and more generally reduce its power in favor of the democratic branches.
A bit over the top here. Are you seriously attempting to compare a SCOTUS decision that held a strict interpretation of statute of limitations under a disparate pay civil lawsuit filed under the Title VII of the Civil Rights Act of 1964, as equivalent to an 1876 SCOTUS decision which held that the 14th Amendment did not trump States Rights when it came to convicting murderers, who had chosen their victims, because they were black? This is an appalling assertion. Aside from this gross exaggeration, the argument fails at its foundations, simply because a Constitutional stricture carries greater force than does a legislated Congressional act. These are not comparable Supreme Court Decisions.
As to this specific case, Ledbetter v. Goodyear Tire & Rubber Co., Inc. (2007), was decided upon whether the 180 day legislated statute of limitations for filing a gender-based pay disparity lawsuit was reset each time the plaintiff received a paycheck, or was a firm date from the moment that level of pay had been determined. Bazemore v. Friday (1986), cited in Ginsburg's dissent does seem to be compelling precedent, but the majority concluded that it was not relevant to the case.
This argument does have traction. I think it carries even more weight, because there did not seem to be any attempt made by Ledbetter to prove that every increase in pay she had received during her 20 year employment by Goodyear had been inequitable based upon gender discrimination. The perpetual reset of the 180 day statute of limitations argument is greatly weakened by this.
It is proper for Congress to address this inequity, as it is resultant from a judicial statutory interpretation of their past legislative act, which a majority of Congressional members believes is not in keeping with their present-day understanding of it. It is not proper to go over the top with derogations of the Judiciary Branch, simply to advance your own expansive, and politicised views regarding civil rights. Let me ask you: did Lochner v. New York (1905) uphold civil rights, or tear them down? What constitutes Civil Rights is not an easy cookie cutter definition.
January 5, 2009 9:49 AM | Reply | Permalink
I wish it would occur to someone with a constituency to defend the SCOTUS on the grounds they ought to be defended on; that civil rights simply isn't their job.
The SCOTUS is an arbiter of what the law is, not what the law should be (at least that's the idea; Douglas, Brennan, and Rehnquist in particular have had an "It's my ball, I'm going home." jurisprudence on occasion). Judges (on the SCOTUS or otherwise) cannot - MUST not - be biased in favor of any particular constituency or social change.
It isn't the fault of the courts that Congress writes narrow statutes. The SCOTUS doesn't exist to enable Congress. The SCOTUS exists to (among other things) limit Congress. The SCOTUS should not put a thumb on the scale and give the legislature, or anyone else, the benefit of the doubt just because they trumpet a worthy social cause.
That's not jurisprudence, it's politics. And the Court shouldn't do politics.
January 5, 2009 10:56 AM | Reply | Permalink
Three branches of government. You have to be thankful sometimes. We can always undo a bad decision (or what you believe is a bad decision).
Usually, the Courts are about 10-20 years behind the political winds of the day. Congress passes the Sherman Act, the Courts slowly erode it. Congress passes the civil rights act, the Courts slowly erode it. The courts enforce equal protection. Legislatures slowly erode it.
Maybe it's all sore loser syndrome.
I thought long and hard about whether judges really just make decisions based on their own moral code, whether they make decisions that seem to work the best given the case in front of them, or whether they actually stick to some sort of legal principle and follow it to its bitter end. I picked door no. 1. But they at least have to be able to justify their judgments in an opinion. Thanks for small favors.
January 5, 2009 2:34 PM | Reply | Permalink
It's not civil rights in particular, it's that the court so often sees its job (a little like the senate's) as protecting the powerful few against the many who would encroach on them. 30 years before Ledbetter, Rehnquist was swaying the rest of the court to the notion that there was no gender discrimination in telling female employees that their husbands wouldn't get the same death benefits given to the wives of male employees if they were killed on the job. Or take the infamous Carnival case, where the court upheld a contract that the plaintiffs weren't even allowed to read before making payments under it.
There's a great deal of harrumphing about how the courts only read the law and interpret it, but in many cases that seems unlikely. Instead it appears much more that they decide their intended result and then fix the intelligence, er, erect an intellectual scaffolding to reach it.
January 5, 2009 3:57 PM | Reply | Permalink
I recommend to you Posner's Law Pragmatism and Democracy. He's all wrong (never mind that he applied this only true American philosophy incorrectly, OR that he's a Chicago guy). But it's an easy read and will help keep you up at night angry. You might miss it after dubya.
Here's his argument in a nutshell: 99% of judges don't have an ulterior political motive--they think of what makes common sense-- how a parent might break up a fight between 2 kids -- and then come up with the theory. If you ever talk to a law clerk, you'll know that the judge usually makes up her mind before she asks her staff to get to work writing and researching. The political philosophy comes in, I suspect, in those very hard cases where there's no "common sense" solution.
the problem is that what he thinks of as "common sense" isn't exactly universal.
January 5, 2009 5:25 PM | Reply | Permalink
Nathan -- Don't forget to check out the Supreme Court doctrine from Hans v Louisiana, also from the late 19th century post-reConstruction period. And Hans is still the governing case, even though it totally rewrites and falsifies the 11th Amendment in order to use it as a weapon (still very useful) against effective enforcement of the 14th Amendment. It is one of the most egregious examples of usurpatory aggressive jurisprudence, overturning laws to which the Supreme Court is supposed to be bound and legislating from the bench. But don't hold your breath waiting for the RW,{or any broad Civil Rights coalition of progressives effectively} seeking to undo it anytime soon.
rsvp
cloudy
January 6, 2009 12:05 AM | Reply | Permalink