Ledbetter again... liberal versus conservative judicial philosophies

I was taking a look at the Workplace Prof Blog (a member of the Law Professors Blog Network), and I came across a post by Paul Secunda which illustrates the divide between the conservative and the liberal legal philosophies.

In One Management Response to Ledbetter, Prof. Secunda discusses just how "unfortunate" the recent Ledbetter decision was for "all plaintiffs, especially women, seeking to bring pay discrimination claims under Title VII." He quotes a letter from a law firm which represents large employers in discrimination suits advising them to "use Ledbetter to force the plaintiffs to focus their statistical analysis on pay decisions made within the 180/300 day charge filing period." Because these types of discrimination claims often rely on statistical analysis to show gender-based disparity in pay levels, this tactic would make it much more difficult to establish pay discrimination, by limiting the statistical data set used for the comparison.

Prof. Secunda goes on to demonstrate a patronizing and rather condescending attitude toward the majority of the Supreme Court: "I'm sure the Court foresaw none of these consequences." Why do you think that, Professor? Is your position that if the Court disagrees with a particular policy consequence of applying the law as written, it should apply the law in a different way? Does your world view not allow for a judge to say "man, I think Congress made a bad call, but the law's the law?" Prof. Secunda encourages disrespect for the Court by suggesting that they voted out of ignorance.

But of course it is not the Court's job to decide on the wisdom of a policy adopted by Congress. Their role is only to determine what policy Congress did in fact adopt.

In an earlier post, Prof. Secunda calls on Congress to "nullify" the Ledbetter decision. Again, his terminology shows a profound misunderstanding of the different roles of the legislative and the judicial branches. Congress has no power to "nullify" a Supreme Court decision (as an aside, I wonder if Prof. Secunda would support the President if he were to "nullify" a decision made by one of the other branches). Congress can certainly change the law, causing future such cases to have a different result, but that's very different from "nullifying" the decision.

And there's a very good reason for things to be structured this way. As a policy matter, I tend to agree with Prof. Secunda that the tight time-frame provided by Congress in Title VII will make it more difficult, and probably too difficult, for meritorious claims of pay discrimination practices to succeed. Suppose, for example, an employer gives all men a 5% raise every year and all women a 4% raise every year. It might be years before that disparity accumulates enough to be noticeable.

But at the same time, Prof. Secunda must also allow that statutes of limitations are, in the abstract, a good thing and should apply in cases even where we really, really don't like a particular behavior. Had the Court ruled the way Prof. Secunda wanted, there would be no way for it to apply any statute of limitations to Title VII claims. To my knowledge, there's no other provision of the statute for the Court to fall back on and say just when pay discrimination claims would become stale. Would it be 5 years? 10 years? That's a judgment call, a balancing of different interests. And that's what we have Congress for, to make those judgment calls and balance those conflicting interests.

But perhaps Prof. Secunda would prefer a judicial oligarchy to make those decision for us poor, ignorant sods who don't understand the terrible consequences of these important decisions.

Previously on Stubborn Facts:

• Ledbetter v Goodyear, Simon's seminal work on the case.
• Reactions to Ledbetter