I do not, however want to give the impression that it follows that any of the judges, be they Right or Left, and there is no longer a true center, simply make up the law to suit their own predilections. Thus in my essay, entitled, “The Supreme Court - Consequences As New Appointees Shift Its Balance” which I wrote in October of 2005 and which can be found in full here, I quoted a number of Justices on the subject of deciding cases in ways which as a matter of policy they disapproved of, e.g. Justice Stevens, in referring to some conclusions he had reached, explained that he believed that as a matter of policy that the outcomes were: "unwise…. (but) I was convinced that the law compelled a result that I would have opposed if I were a legislator…”
But that does not mean that judges are not influenced in reaching their conclusion by their political philosophy and their background.
The Ledbetter case, which involved interpretation of a law passed by Congress rather than the Constitution is a case in point. The law provided that women may not be paid less than men for equal work.
After working for Goodyear for almost 20 years Lilly Ledbetter was by far the lowest-paid employee in her position. She proved that this disparity was due to sex discrimination, and a federal district court in Alabama found Goodyear liable. On appeal, Goodyear countered it hadn't discriminated against Ledbetter—recently. (Emphasis added) Title VII, of the federal law requires suit to be filed within 180 days "after the alleged unlawful employment practice occurred." In essence, Goodyear argued that the discriminatory decision it made about Ledbetter's pay were made long ago and that since pay raises were a percentage of previous pay, the pay discrepancy kept getting larger and larger. But they argued that except for the first deliberate discriminatory act, the later smaller raises were not the result of any gender discrimination, but simply the result of the much earlier act. Ledbetter's low salary might have merely reflected her earlier, discriminatorily low pay, rather than more recent pay increases.
The Supreme Court in a 5 to 4 decision held that the suit was not filed within the required 180 days and dismissed the suit. The decision turned on the interpretation of the meaning of “unlawful employment practice.” The minority of four held that the intent is not controlling-it is the effect of the decision that controls, and since later smaller pay increases had the effect of sex discrimination, the suit was filed in time. Jeffrey Toobin in his book on the Supreme Court, “The Nine” points out at page. 330 that “for years, the court said that if a women sued within 180 days of her last offending paycheck,” she is entitled to recover for the entire period. But now with a change in the courts personnel the view was different. Alito had replaced O’Connor. Fortunately, since this involved an act of Congress, that body was able to amend the law to make its meaning so clear that even the Supreme Court could no longer misunderstand its intent.
Now I don’t suggest that the Right wing justices did not intend to follow the law, but their philosophy, their backgrounds, were not sympathetic to the objective of the law passed by Congress, and so they interpreted it narrowly. The four liberal justices, and the departed O’Connor, showed their sympathy by interpreting it broadly. They all felt that they had the correct interpretation, but they could not and cannot escape their biases, or their background. In the end it is what instructs them.
The same is true in interpreting the Constitution. In interpreting Roe v. Wade the court had set a standard (actually O’Connor had) that a law restricting abortions must not place an undue burden on women. Pennsylvania had passed a law putting various restrictions on the right of a woman to an abortion including one that she must notify her husband before having one. Alito, then on the Court of Appeals, dissented from the majority on the court finding this to be a reasonable burden. When the case reached the Supreme Court in Planned Parenthood v. Casey, O’Connor was livid over Alito’s view. Not only was such a requirement an undue burden under Roe, but it violated the Equal Protection Clause of the Constitution. The fact that she was a woman clearly was not an insignificant factor in her strong reaction. She declared, “Women do not lose their Constitutional protected liberty when they marry.”
If we look at the decisions it becomes obvious that judges who hold a high regard for the protection from unreasonable searches and seizures will find more situations as unreasonable than those who don’t; those who put a high value on free speech will interpret that broadly, while those who hold the right to use ones wealth to influence elections will have a view that reflects this world view.
It is for that reason that the court functions best when it has on it justices with different backgrounds and philosophies. A woman often will see things differently from a man. Someone who has had to struggle may see things differently from one who was born with a silver spoon in their mouth.
For that reason Shell Haas and Gary Schwartz had it wrong when they wrote in the Suburbanite a few weeks ago that ethnicity (and presumable gender) has no place in choosing a justice for the court. Did they or their predecessors in this type of thinking express a concern when during the first 178 years of the court every justice was a white man. We did not have a justice of another color until 1967 and did not have a woman until 1981. No one wants to bar white men from serving on the court, but it is strange that people object at the idea that at this late date we might want to see some with other backgrounds and experiences, such as Justice Marshal, or Justice O’Connor who upon graduating from law school was offered a job as a secretary in a law firm. Even now, until Justice Souter resigned, we had seven white men out of nine on the court. Do Haas and Schwarz think that these seven white men had some special qualification that those of another ethnicity, gender, or race do not possess?
I reproduce the letters from Haas and Schwartz below:
"To the Editor:
In the editorial “ Supreme Court nomination is a win for all” there was no mention of judicial qualifications. With decisions overturned, Ms. Sotomayor’s really does not exemplify the cream of the crop of potential candidates. She is not the first Hispanic to be named for the court. The Honorable Justice Cardozo has that distinction. It is wonderful to pursue the American dream, but as Martin Luther King Jr. put it, it is by the content of their character, not by the color of their skin. He should have added “not by their ethnicity either.” No one is excluded by society in America today, except those individuals and groups that desire not to be included. We must think of ourselves as Americans, not hyphenated Americans. America has always had ethnic diversity, but that diversity merged with the willingness to subvert that pride to a greater pride- that of being an American.
Shel Haas
"To the Editor:
A Supreme Court nomination is win for all. I wonder, forgive me but somehow I believe it’s wrong to pick a judge because of ethnic background. I mean Justice (whatever that is) should be blind. Race and religion that should be irrelevant for a judge. No, I think judges should be judged on their judgement, nothing else. And of course, it’s important for people to believe Judges are fair and race card muddies up that perception.
Gary Schwartz"
Next time I will discuss the much-maligned Ricci (aka the firemen’s) case.
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