The Oath: The Obama White House v. The Supreme Court Read online

  Roberts took the lead in defending Goodyear, relying on the venerable argumentative tactic of the slippery slope. Under the plaintiff’s theory, Roberts charged, companies could be liable for acts that were committed many years ago. “I suppose all they’d have to do is allege that sometime over the past. I mean, it doesn’t have to be 15 years,” he said. “It could be 40 years, right … that there was a discriminatory act, in one of the semi-annual pay reviews I was denied this, a raise that I should have gotten.”

  Wrong, replied Ginsburg, who was two seats to Roberts’s left. If the case were based on a single disputed small raise many years ago, there would be no point to bringing a case. “If she’s going to bring a case [alleging] I got a 2 percent raise, he got a 3 percent raise, her chances are very slim,” she said. But Kennedy—the key vote—weighed in on Goodyear’s side, by raising the possibility that a company may have been sold between the time of the alleged discrimination and the commencement of the lawsuit.

  In this case, Goodyear had an important advantage. The Bush administration, through the solicitor general, entered the proceedings and urged the justices to rule for Goodyear. Irving Gornstein, the assistant to the SG, told the justices, “Employees who allow the 180-day period to pass may not years later and even at the end of their careers challenge their current paychecks on the grounds that they are the result of a number of discrete individually discriminatory pay decisions that occurred long ago.” The Court agreed, by the customary 5–4 split (the same as in Gonzales v. Carhart, the abortion case that was pending at the time). Roberts assigned the opinion to Alito.

  Alito had been a judge on the Third Circuit for fifteen years when Bush nominated him to the Supreme Court. That meant that he had served as an appeals court judge for longer than any of the other justices; at the time of his promotion, Alito had already written hundreds of opinions. So it was not surprising that Alito brought an established style that reflected his long experience. Circuit court opinions tend to be drier, less rhetorical than Supreme Court opinions, and this approach suited Alito’s careful, even phlegmatic temperament. In rejecting Ledbetter’s claim on statute of limitations grounds, Alito hewed closely to the facts and his view of the precedents. “She argues simply that Goodyear’s conduct during the charging period gave present effect to discriminatory conduct outside of that period,” he wrote. “But current effects alone cannot breathe life into prior, uncharged discrimination.… Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so.”

  Alito was short on sympathy for Ledbetter but long on the risks cases like hers posed for corporate defendants. “Statutes of limitations serve a policy of repose,” he wrote. “They represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” (A graceful stylist like Roberts would never have written such a clunky sentence.) The EEOC filing deadline, Alito went on, “protects employers from the burden of defending claims arising from employment decisions that are long past.”

  As the senior associate justice in the minority, Stevens was responsible for choosing which justice should write the primary dissent. For workload purposes, Stevens (and Roberts) liked to spread these assignments around, and Ginsburg already had the major dissent in Gonazales v. Carhart on her plate. But since Ginsburg felt strongly about this case too, Stevens gave it to her as well.

  Sex discrimination cases, like civil rights cases generally, had changed since Ginsburg was a litigator in the seventies. The Court in recent years had focused on affirmative action programs, testing whether racial or gender preferences violated the rights of the majority. But Ledbetter was not a case about special privileges. It was a case, simply, about equality, very much like the kind that Ginsburg herself had brought to the Court three decades earlier. Alito’s bloodless opinion, with its tender regard for the Goodyears of the world and none at all for the Ledbetters, inspired Ginsburg to unleash a powerful and thorough dissent. (At 6,200 words, it was nearly as long as Alito’s opinion for the Court.)

  As someone who had actually litigated sex discrimination cases, Ginsburg had some idea of how they unfolded in the real world. “The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination,” she wrote. “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meat for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.”

  This was obvious, of course, since it’s clear that employers that discriminate rarely make public announcements to that effect. Ginsburg also made short work of the slippery slope argument, noting she was only proposing to allow suits by plaintiffs who did not know they had been discriminated against until much later. For those plaintiffs who knew about pay differentials and simply waited to sue, Ginsburg noted, “No sensible judge would tolerate such inexcusable neglect.”

  Ginsburg’s words were endorsed only by the three other losing justices in the case. And Ledbetter (both the case and the person) was still fairly obscure; the news media rarely pays attention to cases about procedural doctrines like statutes of limitations. But Ginsburg had a plan to turn Lilly Ledbetter, and her own dissenting opinion, into something more than just another quickly forgotten loss for the liberal quartet.

  In this Ginsburg had an edge. Notwithstanding the arcane details of federal procedure at issue in the case, Ginsburg knew that Ledbetter’s predicament was easy to understand. Ledbetter had been a clear victim of discrimination and, perversely, the longer Goodyear violated her rights to equal pay, the weaker her case became. People outside the Court, and especially across First Street, at the Capitol, would respond to her story.

  Ginsburg’s idea for her dissent was also rooted in an important difference between the Carhart and Ledbetter cases. Carhart was a decision based on the Constitution. The only people who could change or overrule it were the justices themselves. Accordingly, as Chief Justice Hughes put it, Ginsburg’s only recourse in her dissenting opinion in Carhart was to appeal “to the intelligence of a future day.” Ledbetter was different. It was not based on any constitutional provision. Rather, the issue in Ledbetter was the interpretation of an act of Congress—specifically, the statute of limitations provision of Title VII of the Civil Rights Act of 1964. Only the Court could interpret the Constitution—but Congress can always change a law.

  On May 29, 2007, Ginsburg waited, sunken in her big chair, as Alito read his summary of the majority opinion. In her fourteen years on the Court at that point, Ginsburg had gone as long as four years between reading dissents from the bench. Now, only about a month after Carhart, she was reading another. That alone would have generated a good deal of attention.

  In dissents from the bench, the tradition was for the justice to give, in essence, a shortened version of the published opinion. But that was not what Ginsburg did. Rather, she described the Ledbetter case in plain English, not the legalese of her dissent. “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. “Today’s decision counsels, sue early on when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work. Of course, you are likely to lose a less-than-fully baked case.”

  But Ginsburg was just warming up. (Overall, she spoke twice as long as Alito.) She then gave a detailed summary of Led
better’s long career at Goodyear and the acknowledged differences in her pay and that of comparably situated men; she went on to explain how those differences expanded and multiplied over the years. “As the court reads Title VII, each and every pay decision Ledbetter did not properly challenge, wiped the slate clean,” Ginsburg said. “Never mind the cumulative effect of a series of decisions that together, set her pay well below that of every male Area Manager.” All through these years, Ginsburg pointed out, Ledbetter had no idea that she was making less than her male peers.

  At last Ginsburg came to the climax—and the point—of her long speech. “This is not the first time this court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose,” she said. Ginsburg was referring to a series of cases in the late 1980s when the Court made winning discrimination cases much harder. “In 1991,” Ginsburg went on, “Congress passed a Civil Rights Act that effectively overruled several of this court’s similarly restrictive decisions including one on which the court relies today.” In other words, in the 1991 act Congress repaired the damage the Court did in a series of wrongheaded decisions.

  “Today, the ball again lies in Congress’ court,” Ginsburg concluded. “As in 1991, the legislature has cause to note and to correct this court’s parsimonious reading of Title VII.”

  Rarely in the history of the Court had a justice, speaking from the bench no less, called so directly on another branch of government to nullify a decision by her colleagues. And rarely had a justice’s words in dissent created so powerful and immediate an impact. Ginsburg’s words were intended to, and did, draw the notice of the Democratic legislators who had just won control of both houses of Congress. In addition, the Democratic candidates for president—among them, at that point, Hillary Clinton, Barack Obama, and Joseph Biden—quickly took up Ginsburg’s challenge. Thanks to Ginsburg, a legislative overruling of Ledbetter v. Goodyear Tire & Rubber Co. became a central plank of the Democratic Party.

  Very suddenly, in her seventieth year, Lilly Ledbetter was a famous woman.

  6

  THE WAR AGAINST PRECEDENT

  With her dissent in Ledbetter, Ginsburg executed a nimble feat of jujitsu, turning a setback into a possible long-term victory. But in that second year of the Roberts Court, there was no mistaking the full picture of what was happening. The era of good feelings among the justices lasted precisely twelve months. Unanimous opinions in year two plummeted from 45 percent to 25 percent. More importantly, in contested cases the conservatives were winning, almost all the time. A full third of the cases were decided by a margin of 5–4, the highest percentage in more than a decade. The liberal quartet of Stevens, Souter, Ginsburg, and Breyer was able to assemble a majority in only a quarter of them.

  The conservative victories ranged over the Court’s docket, but some of the most important came in areas that especially mattered to the chief justice. In a famous decision from 1968, Chief Justice Warren held that taxpayers had the right to sue the government to block expenditures that might violate the First Amendment’s prohibition on establishment of a state religion—that is, to maintain the barrier between church and state. Warren’s theory in Flast v. Cohen was that if taxpayers did not have standing to bring these suits, there would be no effective way for the courts to examine possible constitutional violations. Conservatives like Roberts had targeted the Flast case for decades, part of their larger effort to rein in standing doctrine. In Hein v. Freedom from Religion Foundation, the five conservatives chipped away at the Flast precedent, holding that taxpayers lacked standing to challenge any action by the executive branch on church-state grounds.

  In a case with the evocative title of National Association of Home Builders v. Defenders of Wildlife, the Court shut the courthouse door to plaintiffs in a different way. The majority held that an environmental group could not stop the Environmental Protection Agency from returning jurisdiction over water pollution permits to states.

  In death penalty cases, where Kennedy often joined the liberals, he voted with the other side to uphold two planned executions. One case involved jury selection in death penalty cases, and the other weighed whether the defendant was entitled to a hearing on the issue of ineffective assistance of counsel.

  Even one vaguely comic case from Alaska turned into a political standoff. On January 24, 2002, the Olympic Torch Relay passed through Juneau on its way to the Winter Games in Salt Lake City. The principal of a local high school allowed students and staff to skip class and watch from the sidewalk as the runners passed by. Joseph Frederick, an eighteen-year-old senior, stood across the street from the school with a group of friends, with a fourteen-foot banner that said, BONG HiTS 4 JESUS. The principal told the group to take it down, and all except Frederick agreed. The principal forcibly took the sign from Frederick and later suspended him for ten days.

  The issue in the case was whether the First Amendment protected Frederick’s display. At the time, Deborah Morse, the principal, said she removed the sign because she thought it encouraged drug use. In fact, it remains unclear to this day what, if anything, the sign meant. Frederick always denied that he was talking about drugs; indeed, he maintained that the whole thing was a joke and “that the words were just nonsense meant to attract television cameras.” Still, in Morse v. Frederick, the Court agreed to weigh the limits of students’ First Amendment rights.

  The subject had a rich history. In 1969, at the height of the Vietnam War, the Court ruled that three students in Iowa could not be sent home from their local schools for wearing black armbands to protest the war. In Tinker v. Des Moines Independent Community School District, the most famous opinion Abe Fortas wrote during his brief tenure on the Court, he said, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In the years since, though, conservative justices had cut back on the freedoms granted to students, which they did in Morse v. Frederick as well.

  The dueling opinions, by Roberts for the majority and Stevens for the dissenters, took issue over the less-than-momentous question of what Frederick’s slogan meant. “The message on Frederick’s banner is cryptic,” Roberts wrote. “It is no doubt offensive to some, perhaps amusing to others. To still others, it probably means nothing at all.” Roberts and the four others were willing to trust the principal’s conclusion that the banner encouraged drug use. On the other hand, Stevens took Frederick at his word: the banner was gibberish and he only wanted to get on television. The question was whether, in a matter involving freedom of speech, the principal or the student should receive the benefit of the doubt. Roberts won by backing the school authorities. (Thomas wrote a separate concurring opinion, arguing that Tinker should be overturned because students should have no free speech rights at all under the First Amendment.)

  Morse v. Frederick could be dismissed as a silly aberration, but the overall tenor that year was unmistakable, and deadly serious. There was no doubt which one of the liberals was most traumatized by the Court’s sharp turn to the right. It was Stephen Breyer.

  Breyer was always very clear about his happiest professional memory. He had grown up in San Francisco, gone to Stanford and Harvard Law School, clerked for Justice Arthur Goldberg, and then returned to Harvard in the late sixties to teach. Less than a decade later, though, Breyer surprised his colleagues in Cambridge by returning to Washington. It was common for Harvard law professors to work in the executive branch—much later, Obama would practically deplete the faculty—but Breyer went to work in Congress. He became chief counsel to the Senate Judiciary Committee, which was then chaired by Edward M. Kennedy.

  Almost every morning, Breyer had breakfast with the top lawyer for Strom Thurmond, who was then the senior Republican on the committee. Together, cordially, the two staffers mapped out plans for the committee. Of course Kennedy and Thurmond were ideological adversaries, but they directed their representatives to find areas of common groun
d. Indeed, it turned out to be a remarkably successful legislative partnership, producing landmark laws that deregulated the trucking, airline, and natural gas industries. Breyer loved that time in his life.

  His tenure on the Judiciary Committee staff also yielded a very tangible benefit. In 1980, when Breyer was just forty-two, President Jimmy Carter nominated him to the First Circuit. Breyer was so popular among the senators on the committee, the Republicans as well as the Democrats, that he was confirmed after Carter had lost the presidential election to Ronald Reagan. Later, when the political environment on judicial nominations turned poisonous, this kind of bipartisanship on a circuit court nomination became inconceivable. But this period—this golden age, as Breyer recalled it—became the model that he hoped to replicate on the Supreme Court.

  Breyer never lost respect for the legislators he came to know during his days on Capitol Hill. He believed in the Congress, and in government generally. To him, compromise was a virtue, not a vice. The point was to give everyone a say and reach a result that … worked. Breyer loved that word (and its cognates) and used it incessantly. “Our constitutional history,” Breyer wrote in his book Active Liberty, published in 2005, “has been a quest for workable government, workable democratic government, workable democratic government protective of individual personal liberty.” Five years later, Breyer wrote another book, which he called Making Our Democracy Work.

  After Clinton appointed Breyer to the Court in 1994, Breyer dissented in most of the major cases up to and including Bush v. Gore, in 2000. But then Breyer had had his own brief period as a force in the majority, thanks largely to O’Connor. During George W. Bush’s first term as president, as O’Connor grew more and more alienated from the Republican in the White House, Breyer and O’Connor became a formidable team. They also shared a genuine fondness for each other, for they had similar practical, problem-solving temperaments. They traveled the world, giving speeches and advice to judges and legislators. (After the 9/11 attacks, they were stranded in India together.)