The Supreme Court sends a message to would-be job discriminators: Discriminate away, baby!

The new president signs the Lilly Ledbetter Act in January 2009, with Lilly Ledbetter visible seen behind him and members of Congress looking on.

by Ken

Howie has already called attention to the Roberts Court's extremist coup with its Voting Rights Act slapdown. I suppose it's possible that the five thug-justices really don't understand what they did, but the signs all over the country are that the message has been received by the country's vote suppressors, indeed all the felons who have been toiling so prodigiously to disenfranchise people they don't like. Last week he wrote:

The 5 conservative bastards did something far more destructive the day before by striking down the Voting Rights Act. It's a much bigger deal than letting gays marry-- because it will inevitably lead to a far more conservative and intolerant government, one that could do a great deal of harm to, among others, the LGBT community.

Now I really don't want to minimize the importance of the rulings striking down Section 3 of DOMA and affirming the demise of California's Prop 8. There are a lot of people for whom marriage equality is a paramount issue, and it's kind of astonishing to find the weight of the Supreme Court -- not least as conservative a court as this one -- behind it, even with all that remains to be done. There should also be a certain amount of momentum. If the homophobes are worried that it may be hard to prevent marriage equality from spreading, or being forcibly spread, to the 37 holdout states.

At the same time, there's no sign of a groundswell of support at either the federal or state level for making equality in such arguably more important areas as employment and housing the law of the land. I think such developments are more possible now that they've ever been, but it's hard to detect a lot of momentum carrying over from marriage-equality victories.

And the happy vibes of those rulings are overshadowing other dark doings of the Roberts gang. Myself, I don't think it's any coincidence, as is suggested by the stage-managing of the dispensing of the term's decisions in those final weeks.

The New Yorker's Jeffrey Toobin focuses in a new blogpost, "Will Ginsburg's Ledbetter Play Work Twice?," on the decisions that "Sammy the Hammer" Alito read the same day he was noticed ridiculing Justice Ginsburg while she read her dissents. Toobin recently did >an interesting profile of the justice, "Heavyweight: How Ruth Bader Ginsburg has moved the Supreme Court" (available free to subscribers only), noting that her history isn't that of the standard liberal people generally assume, given her focus on issues outside the standard ideological boundary markers, like job discrimination against women.

In the new post, Toobin notes that those cases "recalled the biggest loss -- and biggest victory -- of Ruth Bader Ginsburg's career on the bench."

The subject was job discrimination, which is prohibited by Title VII of the Civil Rights Act of 1964. Six years ago, the Court threw out a case that a woman named Lilly Ledbetter brought against her long-time employer, Goodyear Tire & Rubber. Ledbetter had been paid less than her male counterparts for many years -- something she didn't know until shortly before she left the company. The Justices, in an opinion by Samuel Alito, said that she had waited too long to bring her case, and extinguished her claim on statute-of-limitations grounds.

Ginsburg wrote a strong dissent in the Ledbetter case, in which she was joined by three other Justices. She called on Congress to amend Title VII and undo the damage of the Court's decision. She pointed out that it was unfair to force Ledbetter to sue before she knew she had been a victim of discrimination. But Ginsburg knew that Congress, not the Court, framed the meaning of any federal law. She said Congress could, and should, amend Title VII to make it clear that Ledbetter and others like her had the right to sue. "The ball is in Congress's court," Ginsburg said, in an opinion that she read from the bench.

"Ginsburg's timing was exquisite," Toobin writes.

In 2007, Democrats had just retaken control of the House of Representatives and were on the verge of winning the Presidency. The first bill that Barack Obama signed as President was the Lilly Ledbetter Fair Pay Act of 2009, just as Ginsburg had hoped. A framed copy of the bill, inscribed by Obama, has an honored place in Ginsburg's Supreme Court chambers.

It was a pair of Title VII cases that Sammy the Hammer screwed up Monday, joined naturally by his four fellow thug-justices for 5-4 majorities.

In Vance v. Ball State University, the Court narrowed the definition of "supervisor." This is important because plaintiffs can win in Title VII cases only if they suffer discrimination from a supervisor, not from a peer in the workforce. In the other case, University of Texas Southwestern Medical Center v. Nassar, the Court cut back on the definition of "retaliation," which is a key term underlying many Title VII cases.

In the dissent (joined by Justices Breyer, Sotomayor, and Kagan) that she read from the bench, she wrote, ""The Court's disregard for the realities of the workplace means that many victims of workplace harassment will have no effective remedy." And as Toobin notes, she "ran her Ledbetter play again," writing:

Six years ago the Court read Title VII in a similarly restrictive way. In 2009, Congress corrected that error. Today, the ball lies again in Congress's court to correct this Court's wayward interpretation of Title VII.

The chances aren't great, though, first because the job-discrimination cases "they will be swamped by the other, more dramatic cases at the end of the term"; second, because "there is no compelling figure, like Ledbetter, to bring the cause to life."

But, most important, the politics of the day are different. In 2009, Democrats controlled sixty votes in the Senate, as well as the House of Representatives. The new President's honeymoon was in full swing. Today, the Republican House shows little interest in the plight of victims of job discrimination; the Senate, too, has a Republican veto in the form of the filibuster. This time, Ginsburg's call was no less eloquent, but it's far less likely to be heard.

There is a temptation to think that the cases decided are merely technical refinements to Title VII law. The very fact that the Supreme Court took the cases, and then wrestled them to 5-4 decisions, suggests otherwise. And there's the additional message factor. Once again the Roberts Court has sent a signal that the kinds of people who need the kind of protection Title VII was designed to provide sure ain't gonna get it from this court. Discriminate away, baby. We've got your backs.

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