Bench Memos

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Justice Ginsburg’s Political Activism


Title VII of the Civil Rights Act of 1964 requires that an individual wishing to challenge an employment practice file a charge with the EEOC within 180 days (or, in some cases, within 300 days) “after the alleged unlawful employment practice occurred.”  An individual who fails to submit an EEOC charge within the charging period may not challenge the employment practice in court.


In yesterday’s ruling in Ledbetter v. Goodyear Tire & Rubber Co., the Supreme Court ruled, by a vote of 5 to 4, that a pay-discrimination claim under Title VII cannot be based on the continuing effects of allegedly discriminatory acts that occurred outside the charging period.  Justice Alito’s majority opinion concluded that four Supreme Court precedents “squarely foreclosed” that argument.  Justice Ginsburg, in dissent, offered a different reading of the applicable precedents.


I’m not going to parse the arguments and counter-arguments here.  I instead want to highlight Ginsburg’s remarkable invitation to Congress “to correct this Court’s parsimonious reading of Title VII.”  More precisely, at the end of her dissent, after citing previous instances in which Congress has responded to the Court’s supposedly “cramped interpretation[s]” of Title VII by enacting legislative amendments, Ginsburg writes:  “Once again, the ball is in Congress’ court.  As in 1991, the Legislature may act to correct this parsimonious reading of Title VII.”


One might contend that Ginsburg is not in fact inviting Congress to act, but rather that she is merely noting that Congress “may act”.  Given Ginsburg’s assertion that “the ball is in Congress’ court” and her clear view that the Court’s “parsimonious” reading warrants “correct[ion]”, that would be slicing the salami very thin.  Indeed, the newspapers have accorded Ginsburg’s statement its natural meaning.  The Washington Post, for example, states that Ginsburg “called for Congress to correct what she sees as the court’s mistake.”  And the New York Times states that Ginsburg “invited Congress to overturn the decision” (and that “[w]ithin hours” Hillary Clinton “announced her intention to submit such a bill”).


What business is it of Ginsburg’s to invite Congress to legislate on a matter, much less to legislate in a certain way?  I suppose that it’s no wonder that a justice who can’t separate judging from politics—and whose decisionmaking routinely indulges and entrenches her own political preferences—would see no reason to refrain from advising Congress how to carry out its legislative function. 

Tags: Whelan


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