Why we need liberals on the Supreme Court

Earlier this week that Supreme Court produced an amazingly wrong-headed 5-4 decision on discrimination in the workplace.  It was immediately obvious to me that this decision from the conservative majority was just wrong and I found this great article at Slate, by Stanford Law professor Richard Ford, that really sums up how.  The highlights:

Pop quiz: Suppose you've just discovered your boss has been
embezzling from you for years. Since the 1990s, he's stolen 30 percent
of the return on your retirement investments each year. When did your
boss actually swindle you? How long do you have to sue? A) He swindled
you when he first came up with the scheme?if you didn't figure it out
and sue him then, you're too late and he can keep your money. B) He
swindled you when he shorted you for the first time?if you didn't find
out and sue him then, you're too late. C) He swindled you from the
first year right up until the end, when you found out about it and took
the bastard to court. D) Stop bellyaching; you're lucky to have a job.

If
you answered C, you have a promising career in law?writing frustrated
and angry dissents along with Justice Ruth Bader Ginsburg. If you
answered A, B, or D, welcome to the majority of the United States
Supreme Court…

The Ledbetter decision is practically perverse and
conceptually wrongheaded. Practically speaking, Justice Alito's opinion
provides bad incentives for defendants and plaintiffs alike. Title
VII's 180-day or 300-day filing period is short, but it's arguably fair
in most cases, where the injury is discrete and obvious. An employee
who is fired, denied a promotion, or required to trade sexual favors
for fair treatment on the job knows precisely what has happened. He
shouldn't be allowed to “sit on his rights”?he should either file a
complaint or resign himself to the decision and move on. But an
employee who receives a discriminatorily low salary over time, like an
investor who is cheated by her broker, may not know she is being
shortchanged for years. She isn't sitting on her rights because she
doesn't know that her rights have been violated. Meanwhile, the injury
she suffers is ongoing…

Conceptually, Ledbetter relies on a confused conception of discrimination. Alito's opinion assumes that the legal injury to Ledbetter was Goodyear's intent
to pay her less because of her sex, rather than the ongoing act of
actually paying her less. But that's not right. Discriminatory intent
isn't itself the legal wrong?it's evidence of a discriminatory act…  Goodyear
continued to pay Ledbetter less than her co-workers for the same work
because of her sex. That's sex discrimination.
When it first decided to discriminate against her should be irrelevant.

The “attitudinal model” of judicial decision-making says that judges make their decisions based on their existing attitudes and then just use legal precedents to justify their decision.  So, here you have five conservatives who are likely disposed to favoring business over workers and not so interesting in protecting the rights of women and minorities and you see what you get. 

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