NYT Article Criticism

The WSJ is critical of the NYT article quoted in the last post. Here's why....

Channeling Justice O'Connor

Yesterday the U.S. Supreme Court decided an employment discrimination case in favor of the defendant. Plaintiff Lilly Ledbetter showed that she had received a series of raises smaller than those her male colleagues got, but the question before the court was whether she acted soon enough. The Civil Rights Act of 1964 requires aggrieved employees to file a complaint with the Equal Employment Opportunity Commission within 180 days "after the alleged unlawful employment practice occurred."

At issue in Ledbetter v. Goodyear Tire & Rubber Co. is whether the 180-day clock starts ticking anew each time an employee claiming a wage disparity receives a paycheck. The court ruled 5-4 that it does not--that the "alleged unlawful employment practice" consists of the setting of pay rates, not the actual payment. Justice Samuel Alito wrote the decision, Justice Ruth Bader Ginsburg the dissent.

A couple of things struck us about the way Linda Greenhouse of the New York Times covered this decision. First is the insidious blurring of the legislative and judicial functions:

Title VII's prohibition of workplace discrimination applies not just to pay but also to specific actions like refusal to hire or promote, denial of a desired transfer and dismissal. Justice Ginsburg argued in her dissenting opinion that while these "singular discrete acts" are readily apparent to an employee who can then make a timely complaint, pay discrimination often presents a more ambiguous picture. She said the court should treat a pay claim as it treated a claim for a "hostile work environment" in a 2002 decision, permitting a charge to be filed "based on the cumulative effect of individual acts."

In response, Justice Alito dismissed this as a "policy argument" with "no support in the statute." . . .

In her opinion, Justice Ginsburg invited Congress to overturn the decision, as it did 15 years ago with a series of Supreme Court rulings on civil rights.

"Overturn" is Greenhouse's word, not Ginsburg's, and Greenhouse should know better. Higher courts can overturn the decisions of lower courts, and courts can overturn their own precedents. But the Supreme Court is the final word on the interpretation of federal law. What Ginsburg actually urged Congress to do is enact a new law.

The distinction between making and interpreting laws is fundamental to America's system of separation of powers. It is a distinction that has been blurred in recent decades by a Supreme Court determined to act as a sort of hyperlegislature--most notably in the area of abortion, where the court has conjured literally from nothing (i.e., from a constitution that is silent on the topic) a nearly unlimited right to abort a pregnancy, coupled with an elaborate scheme for determining what regulations on abortion pose an "undue burden."

The liberal left in America--of which Greenhouse is a part--isn't much interested in the separation of powers; by and large it is concerned only with outcomes: Abortion on demand, by any means necessary! Greenhouse's reference to Congress "overturning" a Supreme Court decision--as if the legislature were an ultrasupreme court--shows how deeply internalized this unconcern for the legislative-judicial distinction has become.

This passage from the Greenhouse piece, meanwhile, is just funny:

As with an abortion ruling last month, this decision showed the impact of Justice Alito's presence on the court. Justice Sandra Day O'Connor, whom he succeeded, would almost certainly have voted the other way, bringing the opposite outcome.

Really? Wouldn't Justice O'Connor have carefully weighed the arguments on both sides and come to a conclusion on the merits? Is it really Greenhouse's view that O'Connor would adhere to some sort of party line instead?