Supreme Court Justice Ruth Bader Ginsburg led the dissent to the Court’s 5-4 decision Tuesday on Ledbetter vs. the Goodyear Tire and Rubber Company. The case, which decided that pay discrimination cases could not be brought against employers more than 180 days after any alleged discrimination, also marked the second time in six weeks that Ginsburg read her dissent from the bench: an unusually high rate of occurrence for the historically reticent justice who is described as friends as an etiquette-minded, “white-glove person.” In fact, Ginsburg had never read her dissent to the Court’s decision aloud twice in one year. Ginsburg went years without employing the tactic previous to this term.
Some, like the co-president of the National Women’s Law Center, Marcia Greenberger, are interpreting these vocal dissents as attempts to garner attention for some serious issues. Greenberger characterized Ginsburg’s recent vocal dissents as a “clarion call to the American people that the court is headed in the wrong direction.”
Indeed, partisan politics seems to have captured the Court, and Ginsburg can not have helped but notice. Ginsburg, now the only female Justice since Sandra Day O’Connor’s retirement, has gone up against the same five justices (Alito, Roberts, Kennedy, Scalia, and Thomas) in both recent dissents. Those five frequently form the core of her opposition, and perhaps not surprisingly, three of these five justices were hand-picked by Bush presidents (Alito, Roberts, and Thomas). The other two were picked by Reagan. Ginsburg was joined in her dissent Tuesday by Justice Breyer, the only other justice on the bench appointed by a Democratic President (Clinton, like Ginsburg); by Justice Stouter, appointed by Bush in 1990 and a man who has drawn the ire of conservatives who consider him either an apostate or a phony; and by Justice Stevens, appointed way back in 1975 by Gerald Ford. Unable to persuade a majority of her colleagues on Ledbetter, Ginsburg called on Congress to overturn the Court’s decision.
A month ago, Ginsburg criticized the gang of five for the language and logic in their decision to uphold the Partial Birth Abortion Ban Act. She argued that their opinion reflected “ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”
In her dissent Tuesday, Ginsburg again accused the majority for being out of touch, this time for not taking into consideration common workplace practices and characteristics of pay discrimination. It can be difficult, she argued, for pay discrimination to be proved in the short 180-day period that the Court requires if pay disparity occurs in small increments over time or if comparative pay information is not available to the employee.
Though Ginsburg spoke up for women in the partial birth abortion case, and spoke up again Tuesday for a female plaintiff, her concerns are broader than her sex. She knows that the decision in Ledbetter could hinder anyone who has reason to bring a discrimination suit based on race, national origin, or sexual orientation. We can only hope that in an increasingly conservative court, we have an increasingly vocal dissenter in Justice Ginsburg.
— Jessica Savage