It was true, too, that some of the most famous dissenting opinions were ultimately vindicated, either by the course of events or by future justices. Dissenting in the infamous Dred Scott case of 1857, Benjamin Curtis anticipated the Civil War; the first Justice John Marshall Harlan, dissenting in Plessy v. Ferguson in 1896, presaged the ruling in Brown v. Board of Education fifty-eight years later; Louis Brandeis and Oliver Wendell Holmes protested the Court’s restrictions on free speech in the repressive period after World War I. Later the Court explicitly embraced their understanding of the First Amendment. These were exceptions. Most dissents remained just that.
But the justices kept writing them, and sometimes did more to call attention to the minority view. When the justices finally moved from their cramped quarters in the Capitol to their commodious new building across First Street, in 1935, their new courtroom looked more like a theater. Some justices began playing to the audiences and, on major occasions, read their dissenting opinions out loud. Intentionally or not, justices sometimes also ad-libbed additions to their formal opinions. When, for instance, James McReynolds announced his dissent from the Court’s approval of FDR’s decision to take the government off the gold standard in 1935, he reportedly uttered a line not found in his written opinion: “The Constitution, as we have known it, is gone.”
Justices recognized that reading a dissent from the bench represented their most visible and intense form of protest, and they exercised the privilege sparingly. There were rarely more than a half-dozen dissents read aloud over the course of a year; in some years, like 1984, there were none. William Brennan and William Rehnquist, through their long careers on the bench, each read dissents from the bench exactly once. (Brennan read his dissent in the Bakke affirmative action case of 1978, and Rehnquist read in the Casey abortion case of 1992.)
Still, Ginsburg had no doubt she wanted to register a vocal protest against Kennedy’s opinion in Gonzales v. Carhart. Decades after she’d moved away, Ginsburg’s voice still carried hints of Brooklyn as she began: “Four members of this Court, Justices Stevens, Souter, Breyer and I strongly dissent from today’s opinion.”
Ginsburg made clear that she thought the decision in Carhart came about only because of the changing composition of the Court. “Although today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to Casey’s invocation of the rule of law and the principles of stare decisis”—the rule of precedent. The message was plain. Abortion rights were under siege. “In candor,” Ginsburg said, “the Partial-Birth Abortion Ban Act and the Court’s defense of it cannot be understood as anything other than an effort to chip away at a right declared again and again by this court and with increasing comprehension of its centrality to women’s lives. A decision of the character the Court makes today should not have staying power.”
A few weeks later, Ginsburg would be reading another dissent from the bench.
5
THE BALLAD OF LILLY LEDBETTER
John Roberts, no less than Ginsburg, was shaped by the cases he argued before the Court. Lujan v. National Wildlife Federation, which Roberts argued during his tenure as George H. W. Bush’s deputy solicitor general, seems to have had special resonance for him. An environmental group had challenged the Reagan administration’s effort to assign as much as 180 million acres of federal land for mining. Roberts did not defend the Interior Department’s designation of the land on the merits but rather asserted that the plaintiffs had no right to bring the case in the first place. The issue involved the doctrine known as standing—one of many subjects before the Supreme Court that appear to be just procedural in nature but are in fact freighted with political significance.
In his argument before the Court on April 16, 1990, Roberts said that the mere allegation that a member of the National Wildlife Federation used land “in the vicinity” of the affected acres did not give the group the right to bring the case. “That sort of interest was insufficient to confer standing, because it was in no way distinct from the interest any citizen could claim, coming in the courthouse and saying, ‘I’m interested in this subject,’ ” Roberts told the justices. By a vote of 5–4, the Justices agreed and threw out the case.
Roberts’s argument in Lujan represented a template for how to defend environmental, civil rights, and other “public interest”–type lawsuits. The goal, to the extent possible, was to avoid a judgment on the merits but rather to employ a variety of procedural doctrines to persuade courts to dismiss these cases. There are any number of procedural doctrines that can be used for this purpose. Other examples include ripeness (is it too early for a court to decide the case?), mootness (is it too late for a court to decide?), venue (is this court the right one?), and the “political question” doctrine (is the subject matter appropriate for a court to decide at all?). Everyone agrees that these doctrines are necessary, at some level; the courts cannot be allowed to weigh in on controversies simply because judges feel like deciding the merits. But the ideological divisions on these issues are clear. Liberals want flexible rules that allow courts to reach a lot of decisions on the merits, and conservatives want strict rules to prevent cases from being heard.
Roberts came of age as a lawyer when controversies about procedural doctrines were hot topics. The liberal activism of the Warren Court was based, to a great extent, on flexible rules of procedure. Warren and his colleagues wanted to push the law into new fields and to create new rights. The justices began to allow plaintiffs to bring new kinds of cases. While Roberts was at Harvard, a professor there, Abram Chayes, wrote a famous law review article celebrating this trend. “In our received tradition,” Chayes wrote, “the lawsuit is a vehicle for settling disputes between private parties about private rights.” But that was changing, Chayes said, and for the better. Contemporary lawsuits, especially class actions, amounted to “public law litigation,” which required courts to consider the needs and views of a wide variety of people, who may or may not be actual parties to the case. “School desegregation, employment discrimination, and prisoners’ or inmates’ rights cases come readily to mind as avatars of this new form of litigation,” Chayes wrote. (The Boston school busing crisis was ongoing.) In these cases, Chayes wrote, “the party structure is sprawling and amorphous, subject to change over the course of the litigation. The traditional adversary relationship is suffused and intermixed with negotiating and mediating processes at every point.” He went on, “Most important, the trial judge has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effects on persons not before the court.”
Like many other conservatives of his generation, Roberts built his career fighting the ideas extolled in Chayes’s piece. In the vision of Roberts, Alito, and others, courts should play a narrower role than the one Chayes envisioned. They should interpret rules strictly, construe laws narrowly, and decide only what they must. Indeed, in the one famous line from Roberts’s brief tenure on the D.C. Circuit, he had described “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” George W. Bush put the same point another way, in describing the kind of judges he wanted to appoint to the Supreme Court. “Every judge I appoint,” Bush said, “will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.” Procedural doctrines were the principal tool to keep plaintiffs from persuading judges to legislate.
The political lineup in these procedural disputes, and in civil litigation generally, was clear. “Trial lawyers,” as they are known, are actually plaintiffs’ lawyers, who tend to represent individuals and skew overwhelmingly Democratic. The “defense bar” represents corporations, often insurance companies, and are usually Republicans.
When Roberts was a private lawyer at the firm then known as Hogan & Hartson, he was part of the defense bar. The cases he argue
d before the Supreme Court were typically for corporations against individuals, and they often involved the procedural doctrines. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. A strict reading of the statute—always the preference of defendants in civil rights cases—meant the plaintiff had no right to make her case. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the Alabama wrongful-death statute to sue the city of Tarrant, Alabama. The family of Alberta Jefferson, an African American woman, sued the city, claiming that the fire department failed to save her because of “the selective denial of fire protection to disfavored minorities.”
In one of his early decisions as chief justice, Roberts had a chance to put his expertise in standing doctrine to work—to characteristic ends. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing and dismissed the case. In a broadly worded opinion that relied in part on the Lujan case (offering Roberts the same kind of satisfaction that Ginsburg received from citing the cases she had litigated), Roberts suggested that most state and local government activities were off limits to challenges from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury,” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual under Roberts, the citizen plaintiffs were out of luck.
The justices built their judicial philosophies on the foundation of their prior lives. From differing perspectives, Ginsburg and Thomas had long experience with (and strong feelings about) civil rights; Roberts had neither. Breyer had given years of thought to the role of the administrative state; Roberts had not. Scalia endorsed an overarching theory of the Constitution; Roberts did not. Kennedy viewed the Supreme Court in the context of an international community of judges; Roberts saw no such thing. But the chief justice had spent decades thinking about how to throw plaintiffs in civil cases out of court—the faster, the better. Civil procedure, so dreary even to most lawyers, was for Roberts the surest route to victory for his political side. One of Roberts’s fellow conservatives on the D.C. Circuit used to offer his law clerks a small cash bonus if they could find a procedural issue in any case that would allow the court to dismiss the action. Roberts provided no such cash incentives, but he shared the impulse.
The real-world implications of these procedural roadblocks were clear. With so many barriers at every stage of the process, plaintiffs’ lawyers hesitated before filing new cases, or did not bring them at all. The costs and risks were too high. (Legislative efforts at tort reform, like limits on punitive damages, compounded the difficulties for plaintiffs.) If claims could never get to trial because of procedural barriers, there would be fewer cases brought in the first place. This was especially true in civil rights cases—in “public law” cases, in Chayes’s phrase—because these ambitious undertakings had the greatest procedural vulnerabilities. The defense bar understood these economic realities and, with a sympathetic judiciary, pushed to capitalize on its advantages. As a lawyer and judge, Roberts was more skilled at this kind of work than anyone.
All of which helps explain the fate of Lilly Ledbetter.
The Goodyear Tire & Rubber Company was founded around the turn of the last century, in Akron, Ohio, which soon became known as Tire City. The firm vaulted to prosperity during World War I and the postwar boom, and in time its leaders began looking for new locations to open their vast tire-making factories. In 1929, Goodyear established a base in Gadsden, Alabama. By 1954, it was the largest tire-making facility in the United States. In the seventies, Goodyear prospered, even in the face of the energy crisis, by making steel-belted radial tires, which offered greater stability and traction than traditional models. Still, it was a polluting, competitive business, increasingly susceptible to lower-priced imports from abroad. For employees, even more than for the company, manufacturing tires was a tough, dirty way to make a living.
In 1979, a forty-year-old woman named Lilly Ledbetter went to work at the Gadsden plant. She already had fifteen years of experience at other factories, and Goodyear hired her as a production supervisor. In 1985, she scored the second highest of forty-five applicants to become an area manager. But Goodyear in Gadsden was never an easy place for a woman to work. One male boss pressured her for sex. When she refused, Ledbetter said, he lowered his evaluations of her work. When she confronted him about the poor evaluations, he told her that it was “a lot easier to downgrade you. You’re just a little female and these big old guys, I mean, they’re going to beat up on me and push me around and cuss me.” According to Ledbetter, that boss “continued to ask me out, go out with him. And I finally told him no. And then from that standpoint, my evaluations, the audits got worse.” Nevertheless, Ledbetter, who was one of the very few female area managers at the plant, did receive a top performance award in 1996. She planned to retire the next year.
Shortly before Ledbetter was planning to leave the company, someone anonymously slipped a note inside her mailbox at Goodyear. The message informed her that she was making $3,727 per month while men who were doing the same job were paid between $4,286 and $5,236 per month. The same kind of differences had persisted for years. Ledbetter hired a lawyer, and as she was required to do under the Title VII antidiscrimination law, she took her complaint to the Equal Employment Opportunity Commission. (In her last months at the company, after she had filed her formal protest with the government, she was transferred to a new job that required her to carry tires around the plant. Ledbetter was just short of sixty years old at the time. She asserted that the transfer was retribution.)
Ledbetter put her case before a federal jury in Alabama, which awarded her $3.3 million. The judge reduced the award to $300,000, but Goodyear still appealed the case to the Eleventh Circuit, which overturned the judgment altogether. The company’s claim was straightforward. Goodyear asserted that an employee alleging disparate pay must file an EEOC charge within 180 days of the pay decision giving rise to the disparity. Under that theory, Ledbetter could try to prove only that her 1997 pay adjustment (the last one she had received) was discriminatory. She had no recourse for the earlier years because she had missed the 180-day deadline.
In other words, according to Goodyear, virtually all of Ledbetter’s claims were barred by the statute of limitations. Like ripeness, mootness, and all the other procedural doctrines, statutes of limitations were another roadblock to successful civil rights claims in federal court. The argument was like the ones Roberts made in private practice. Even if Ledbetter had suffered discrimination (which Goodyear did not concede), she was barred from bringing her case because she had waited too long to charge the company.
The Ledbetter case reflected the practical impediments to plaintiffs in civil rights cases. She initiated the case in 1998, and the Supreme Court decided it nine years later. As with most plaintiffs, her lawyers worked for a contingency fee, which meant they earned nothing on the case for nearly a decade (or, as it turned out, ever). Not many lawyers are willing to take such risks. Indeed, Ledbetter’s case only reached the Supreme Court because after her loss in the Eleventh Circuit, her original lawyers brought the case to the Supreme Court Litigation Clinic at Stanford Law School. There, the teachers and students agreed to represent Ledbetter for free.
“Mr. Chief Justice, and may it please the Court,” Kevin Russell, the lawyer with the Stanford clinic began his argument on November 27, 2006. “A jury found that at the time petitioner filed for a charge of discrimination with the EEOC, respondent was paying h
er less for each week’s work than it paid similarly situated male employees and that it did so because of her sex.” The question for the Court was whether all of the paychecks that reflected the discrimination were violations of Title VII, or just the last one.
Ginsburg, the only woman on the Court at the time, ranked around the middle of the Court in terms of how often she asked questions: behind Scalia, Roberts, and Breyer, but ahead of Alito and, of course, Thomas. (Thomas asked his last question in oral argument during the previous term, on February 22, 2006; he has not asked one since.) The diminutive Ginsburg never looked smaller than she did on the bench; her head came nowhere close to the top of her leather chair. But in this case, like almost no other, Ginsburg dominated the argument. Her questions—they were more like speeches—left no doubt about where she stood. Shortly after Russell began, Ginsburg said, “Mr. Russell, I thought that your argument was that ‘yes, you know that you haven’t got the promotion, you know you haven’t got the transfer,’ but the spread in the pay is an incremental thing. You may think the first year you didn’t get a raise, ‘well, so be it.’ But you have, you have no reason to think that there is going to be this inequality.” Quite so, said Russell.
The Oath: The Obama White House v. The Supreme Court Page 9