Supreme Court Lags Again

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This week's Ledbetter ruling by the high court is a supremely enlightening example of the arbitrariness of the law and the difference one justice can make. Beyond that, it reifies the concept of the Supreme Court as a lagging indicator of American politics.

Lilly Ledbetter was an area manager in Goodyear's Gadsen, Ala., plant for almost two decades starting in 1979. According to dissenting Justice Ruth Bader Ginsburg, Ledbetter began her career with earnings comparable to that of her male colleagues. But by the time she retired, her $3,700-per-month take was some $550 lower than the least-well-paid similarly situated man and $1,550 less than the best-paid male area manager.These disparities reduced her retirement benefits by similar margins.

The majority opinion in Ledbetter, written by newcomer and Bush appointee Samuel Alito, reasons that Ledbetter lost her right to sue for sexual discrimination because Title VII requires all claims be filed within 180 days of the discriminatory act. Ledbetter didn't file her claim until a few months before her retirement, which was years after her salary dwindled in comparison with those of her male colleagues.

The majority's decision to rule as it did was the height of arbitrariness. The law is replete with examples of judges applying "equitable tolling" or "equitable estoppel" to push back deadlines that simply don't make sense given the facts of a particular case. Justice Alito could easily have chosen to do so in Ledbetter's case.

Had retired Justice Sandra Day O'Connor still been on the bench, odds are she would have sided with the dissent. Her sensitivity to gender discrimination was borne of a personal history that included the embarrassment of being offered a slew of secretarial jobs after graduating third in her class at Stanford University Law School. Thus, the difference one justice can make.

Alito was also nominated to the court by a president whose conservative popularity has been similarly battered as the public gets a closer view of the effect of conservative governance (or Bush's brand of it) on this nation. Yes, most polls attribute Republican electoral losses last November to Bush's now wildly unpopular invasion of Iraq. But the public is clearly tiring of his archconservative politics and by inference, Alito's as well. Thus, Alito's judicial perspective is a remnant of the political past.