Yesterday's hearings on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court predictably turned to attempts by the senators to suss out her position on Roe v. Wade. While this controversial opinion is certainly important, Americans--especially women--should be much more concerned about a recent line of cases dealing with civil rights and antidiscrimination laws.
The appointment of two justices by President George W. Bush--Chief Justice John Roberts and Justice Samuel Alito--took the Court in a decided turn to the right. The new conservative majority has, starting with the Ledbetter decision, repeatedly overturned controlling precedent, acted against Congress's clearly expressed intent, and gouged numerous civil rights protections.
In Ledbetter v. Goodyear Tire & Rubber Co., the Court held that Lilly Ledbetter should have brought her pay discrimination suit after just six months on the job, even though she didn't know she was being paid unfairly until years later. Congress corrected this absurd result by passing the Lilly Ledbetter Fair Pay Act, which was signed into law by President Barack Obama less than two years after the court decision was issued. But Congress should not have to waste its time reenacting laws that have governed for decades.
Once Ledbetter became an embarrassing memory, and the justices who decided were appropriately rebuked, many hoped the Court would abandon its quest to place its own ideology ahead of settled law. Yet it is clear two years after their decision that these justices still have not learned their lesson.
For instance, Congress passed the Pregnancy Discrimination Act in 1978 to make it clear that the prohibition against sex discrimination includes discrimination related to pregnancy. But last March, in Hulteen v. AT&T, the justices sanctioned lower retirement benefits for women who took pregnancy leave before Congress clarified the law but suffer discrimination now solely because of their pregnancy leave--despite the law's direct command that no woman should ever be treated differently from her colleagues because of a pregnancy.
The Court showed similar disregard for the law in Gross v. FBL Financial Services, which drastically cut back on workers' ability to prove age, and probably other forms of, discrimination. As Justice John Paul Stevens explained in dissent, Justice Clarence Thomas's 5-4 decision in Gross showed "utter disregard for . . . precedent and Congress' intent," because it flat out refused to follow a 1989 decision that interpreted the exact same legal language at issue in Gross but reached the opposite result.
Thomas did not even try to justify his contempt for the settled law, stating simply that, "It is far from clear that the Court would have the same approach were it to consider the question today in the first instance." The Court used to be loath to overturn its own precedent without a compelling reason to do so. But apparently precedent now no longer applies whenever the Court's five conservative members simply disagree with it.
Indeed, even the Court's politically charged decision in Ricci v. DeStefano--the New Haven firefighters case that has garnered so much recent attention--follows this pattern of disregard for well-established law. Federal law prohibits both overt employment discrimination and hidden race discrimination such as a hiring test that screens out minority applicants based on reasons unrelated to their job qualifications. Nothing in federal law requires an employer to prefer mediocre minorities to exceptional white applicants, but when an employer blocks minority applicants for irrelevant or arbitrary reasons, the ban on hidden race discrimination is designed to "smoke out" such biased hiring.
However one feels about Frank Ricci's sympathetic tale of a firefighter studying hard to earn a promotion, the conservative justices went much further than necessary to decide in his favor, holding--in sharp contradiction to a quarter century of precedent--that the ban on hidden race discrimination may itself be an illegal form of discrimination. Their decision cuts at the very foundation of civil rights law, potentially freeing employers to discriminate without consequence so long as they are not foolish enough to create a record of their unseemly intent and removing an essential method for fighting subconscious bias as well.
Four years ago, when Chief Justice Roberts sat where Sotomayor sits this week, he famously described himself as an "umpire" who does nothing more than "call balls and strikes." Several senators have seized upon these words, questioning whether Sotomayor holds herself to the same standard. Yet Sotomayor has a long record of obedience to the laws and precedents protecting ordinary Americans, while Roberts has not been true to his word. In judging Judge Sotomayor, our country would do well to remember the Ledbetter lesson.
Jessica Arons is the Director of the Women's Health and Rights Program at the Center for American Progress. Ian Millhiser is a Legal Research Analyst for ThinkProgress.org.