There's one case that really highlights Ginsburg's toxic judicial activism

With the fight brewing over a new Supreme Court justice, it's helpful to understand the danger America faces because of Ginsburgian judicial activism.  One of the best examples of Ginsburg's philosophy is Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007), in which Ginsburg wrote the dissent, not the opinion.*  The facts of the case are simple, which highlights the difference between judicial restraint and judicial activism.

Ledbetter involved that part of Title VII of the Civil Rights Act of 1964 making it illegal to pay different salaries based solely on sex.  Like all EEOC matters, the Act gave employees claiming discrimination a short time within to bring a claim:

An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. § 2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) "after the alleged unlawful employment practice occurred," ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, § 2000e-5(f)(1).

Ledbetter at 623-624.

In plain English, Congress had mandated that a person claiming salary discrimination had 180 or 300 days from the discriminatory act to file a claim with the EEOC.  Ledbetter had received smaller paychecks than her male peers for years.  Given that she had a limited amount of time to sue after learning about the discrimination, it was essential to determine if the discriminatory act occurred with every paycheck or if it occurred when Goodyear decided to pay her less.  If the latter was correct, Ledbetter had missed her window of opportunity.

In the majority opinion, Justice Alito carefully explained that both the statutory language and judicial precedent were clear: for a wage discrimination claim under Title VII, the clock starts to run when the discriminatory wage is put in place, not every time a new paycheck issues:

The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination.

Ledbetter at 628.

Having made this determination, the court stopped.  It did not rewrite the law.  It left that to Congress, and, in 2009, Obama's Democrat Congress amended the law to expand the time for employees to file claims.

In her dissent, Ginsburg, unlike the majority, did not start with the law; she started with her preferred outcome.  Ginsburg felt that the law was unfair because it may take more than a few hundred days before an employee learns that her employer discriminates against her.

To reach this preferred outcome, Ginsburg engaged in open intellectual dishonesty.  She was so dishonest that the majority opinion politely took her to task for confusing "discrete" acts of discrimination, which are the statute's explicit focus, and a generally hostile work environment.  Ledbetter at 638.

The majority also politely castigated Ginsburg's intellectual dishonesty:

While this fundamental misinterpretation of Morgan is alone sufficient to show that the dissent's approach must be rejected, it should also be noted that the dissent is coy as to whether it would apply the same rule to all pay discrimination claims or whether it would limit the rule to cases like Ledbetter's, in which multiple discriminatory pay decisions are alleged. The dissent relies on the fact that Ledbetter was allegedly subjected to a series of discriminatory pay decisions over a period of time, and the dissent suggests that she did not realize for some time that she had been victimized. But not all pay cases share these characteristics.

Ledbetter at 639.  In other words, Ginsburg was misrepresenting law and eliding facts to obtain an outcome inconsistent with both law and facts.

Ginsburg wanted to rewrite the law to force her preferred outcome.  The strict constructionists on the Court, however, were careful not to make law.  They merely interpreted the law as written in light of case precedent.  It was Congress's job to change the law if it didn't like its effects as written.

That last is a singularly important point because it goes to the heart of the difference between strict constructionists, who limit themselves to interpreting law, and judicial activists, who feel impelled to correct perceived legislative errors, omissions, and ambiguities to achieve a desired outcome.  Failing that, judicial activists will create new rights out of whole cloth, irrespective of the existing Constitution and laws.  In this way, judicial activists turn themselves into an unconstitutional, unelected super-legislature — and that's the only way leftists can force their socialist economic and cultural politics on a center-right country.


*I'm indebted to Sean Higgins for reminding me about the Ledbetter decision.  Higgins wrote an article about Ledbetter for National Review.  The article is behind a paywall, so I haven't read it.  It reminded me, however, of what I wrote about the decision in 2007 when it first came out.

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