The Notorious RBG’s Turf War with Congress

T he late Supreme Court justice Ruth Bader Ginsburg firmly believed that the Constitution is an evolving document that should change to meet the times. Ginsburg’s famous dissent in the 2007 case Ledbetter v. Goodyear Tire & Rubber is a good example of her approach to the law — and of why it is flawed. Ideally, the court’s role within our system of government is to determine whether laws are constitutional, not to correct or overwrite them. Ginsburg thought otherwise and said so in her dissent.

The twist in the story is that Congress subsequently changed the law to address the general point raised in the lawsuit. Legislators fulfilled their role, just as the Court had fulfilled its. This is how the system is meant to work. Ginsburg’s fans, such as the makers of the biographical documentary RBG, argued that it was her fiery dissent that prodded Congress to action. That’s an exaggeration. It was the facts of Lilly Ledbetter’s case that made it a cause célèbre among labor unions and civil-rights activists: She lost her equal-pay suit because she missed an arbitrary 180-day deadline. The ads and op-eds wrote themselves.

Ledbetter claimed in 1997 that she was the victim of pay discrimination at the hands of her employer, Goodyear, for whom she had worked for 20 years. She filed a sex-discrimination claim with the Equal Employment Opportunity Commission (EEOC) under Title VII of the 1964 Civil Rights Act. Her case was thrown out on appeal because she’d filed it more than 180 days after the last alleged violation, the deadline set in the law. Ledbetter conceded in a deposition that she was aware of the pay disparity as early as 1992 but did not pursue a case until later. She contended that the deadline was unfair even so.

She appealed all the way to the Supreme Court, but lost in a 5–4 decision. Justice Samuel Alito, writing for the majority, argued that the case was cut-and-dry: Ledbetter had missed the filing deadline. Was the deadline unfair? Maybe so, but it was deliberately put into the law by legislators. “The short EEOC filing deadline reflects Congress’ strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation,” Alito wrote.

Reading her dissent from the bench — a rare practice for her — Ginsburg decried the majority’s “cramped” interpretation of Title VII, calling it, “incompatible with the statute’s broad remedial purpose.” She conceded that the 180-day limit was in the law but argued that it was “not meant to serve as a specific limitation.”

Much of her dissent involved laying out various arguments for simply ignoring the deadline. She scoffed at the majority’s assertion that doing so would allow two-decade-old cases to be filed. “No sensible judge would tolerate such inexcusable neglect,” she wrote. That argument implicitly accepts that such cases would be at least pursued and heard in court, which is what the deadline was meant to prevent. It also accepts that there ought to be some period of time after which a claim could no longer be made. Ginsburg thought 180 days too short; but when, exactly, should the deadline be? She didn’t say, perhaps because it was Congress’ job to settle this by amending the deadline, if it so chose.

In one of the dissent’s most quoted sections, Ginsburg appeared to concede as much. “Once again, the ball is in Congress’ court,” she wrote. “As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.” But then, in concluding her dissent, she sang a different tune: “For the reasons stated, I would hold that Ledbetter’s claim is not time barred and would reverse the Eleventh Circuit’s judgment.” Translation: Congress has its role, but courts should feel free to override it as they please.

Two years later, Congress passed the Lilly Ledbetter Fair Pay Act, which effectively scrapped the 180-day requirement to file a complaint by having the deadline renew with each new paycheck received. So the system worked as intended. The Court did its job by revealing a failing in the law; Congress did its job by correcting that failing.

As we begin to grapple with Ginsburg’s legacy, it’s worth considering that, had she had her way, the case would have turned out differently. The Supreme Court would have ruled that the law’s provisions could be ignored whenever a majority of the justices said they could. That would have led to confusion about which parts of the law were valid and what deadlines mattered. Unequal treatment would have resulted as courts around the country came to different decisions.

It would have been an ironic outcome for somebody whose career was supposedly about equality before the law.