Bench Memos

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Leahy’s Syllabus of Errors, Part 1


Last Sunday Senator Leahy bemoaned some recent decisions by the Supreme Court’s four conservative members plus Justice Kennedy, speculating that they have cost the institution “credibility with the American people.” Let’s take a closer look at some of the cases Leahy cited to see who exactly is losing credibility here:

1. Ledbetter v. Goodyear Tire & Rubber Co. (2007).  Senator Leahy’s summary of the case is that the Justices “rewrote the law to say . . . that women could be paid less than men.” Stop the presses! Did the Supreme Court really repeal Title VII, the veritable cornerstone of the civil-rights movement? Not even close. The real question in Ledbetter was whether a person could sit on their employment discrimination claims for well over a decade and still sue. In answering no to this question, the Court simply applied Title VII’s 180-day statute of limitations deadline. If you want to change the law, Senator Leahy, you’re in luck — that’s your job! (See Lilly Ledbetter Fair Pay Act of 2009.)


2. Gross v. FBL Financial Services, Inc. (2009). Here, Leahy again accuses the court of “rewr[iting] the law,” but this time, “to say that age discrimination laws won’t apply if corporate interests don’t want them to.” To state Leahy’s position is to refute it. The Court never mentioned “corporate interests,” but held that age discrimination laws won’t apply if the text of the law doesn’t say so. In this case, Congress used different language for race, sex, and national origin discrimination to make those suits easier to bring than age discrimination. 


The irony of a senator criticizing the Court for respecting statutory distinctions made by the Congress seems to be lost on Leahy. But the critique says more about Leahy than the Court. It reveals that his real beef was with the law as originally written and that he wanted the courts to amend the act for him. After all, having to draft statutes, hold hearings, and be held accountable for actual votes can be such a drag. It would be so much easier to just have a Supreme Court that was willing to do the work for him.


I’ll address the last two statutes Leahy misconstrued in a later post today.


 — Carrie Severino is chief counsel of the Judicial Crisis Network.


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