THE BALLAD OF LILLY LEDBETTER
John Roberts, no less than Ginsburg, was shaped by the cases he argued before the Court. Lujan v. National Wildlife Federation, which Roberts argued during his tenure as George H. W. Bush’s deputy solicitor general, seems to have had special resonance for him. An environmental group had challenged the Reagan administration’s effort to assign as much as 180 million acres of federal land for mining. Roberts did not defend the Interior Department’s designation of the land on the merits but rather asserted that the plaintiffs had no right to bring the case in the first place. The issue involved the doctrine known as standing—one of many subjects before the Supreme Court that appear to be just procedural in nature but are in fact freighted with political significance.
In his argument before the Court on April 16, 1990, Roberts said that the mere allegation that a member of the National Wildlife Federation used land “in the vicinity” of the affected acres did not give the group the right to bring the case. “That sort of interest was insufficient to confer standing, because it was in no way distinct from the interest any citizen could claim, coming in the courthouse and saying, ‘I’m interested in this subject,’ ” Roberts told the justices. By a vote of 5–4, the Justices agreed and threw out the case.
Roberts’s argument in Lujan represented a template for how to defend environmental, civil rights, and other “public interest”–type lawsuits. The goal, to the extent possible, was to avoid a judgment on the merits but rather to employ a variety of procedural doctrines to persuade courts to dismiss these cases. There are any number of procedural doctrines that can be used for this purpose. Other examples include ripeness (is it too early for a court to decide the case?), mootness (is it too late for a court to decide?), venue (is this court the right one?), and the “political question” doctrine (is the subject matter appropriate for a court to decide at all?). Everyone agrees that these doctrines are necessary, at some level; the courts cannot be allowed to weigh in on controversies simply because judges feel like deciding the merits. But the ideological divisions on these issues are clear. Liberals want flexible rules that allow courts to reach a lot of decisions on the merits, and conservatives want strict rules to prevent cases from being heard.
Roberts came of age as a lawyer when controversies about procedural doctrines were hot topics. The liberal activism of the Warren Court was based, to a great extent, on flexible rules of procedure. Warren and his colleagues wanted to push the law into new fields and to create new rights. The justices began to allow plaintiffs to bring new kinds of cases. While Roberts was at Harvard, a professor there, Abram Chayes, wrote a famous law review article celebrating this trend. “In our received tradition,” Chayes wrote, “the lawsuit is a vehicle for settling disputes between private parties about private rights.” But that was changing, Chayes said, and for the better. Contemporary lawsuits, especially class actions, amounted to “public law litigation,” which required courts to consider the needs and views of a wide variety of people, who may or may not be actual parties to the case. “School desegregation, employment discrimination, and prisoners’ or inmates’ rights cases come readily to mind as avatars of this new form of litigation,” Chayes wrote. (The Boston school busing crisis was ongoing.) In these cases, Chayes wrote, “the party structure is sprawling and amorphous, subject to change over the course of the litigation. The traditional adversary relationship is suffused and intermixed with negotiating and mediating processes at every point.” He went on, “Most important, the trial judge has increasingly become the creator and manager of complex forms of ongoing relief, which have widespread effects on persons not before the court.”
Like many other conservatives of his generation, Roberts built his career fighting the ideas extolled in Chayes’s piece. In the vision of Roberts, Alito, and others, courts should play a narrower role than the one Chayes envisioned. They should interpret rules strictly, construe laws narrowly, and decide only what they must. Indeed, in the one famous line from Roberts’s brief tenure on the D.C. Circuit, he had described “the cardinal principle of judicial restraint—if it is not necessary to decide more, it is necessary not to decide more.” George W. Bush put the same point another way, in describing the kind of judges he wanted to appoint to the Supreme Court. “Every judge I appoint,” Bush said, “will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.” Procedural doctrines were the principal tool to keep plaintiffs from persuading judges to legislate.
The political lineup in these procedural disputes, and in civil litigation generally, was clear. “Trial lawyers,” as they are known, are actually plaintiffs’ lawyers, who tend to represent individuals and skew overwhelmingly Democratic. The “defense bar” represents corporations, often insurance companies, and are usually Republicans.
When Roberts was a private lawyer at the firm then known as Hogan & Hartson, he was part of the defense bar. The cases he argued before the Supreme Court were typically for corporations against individuals, and they often involved the procedural doctrines. For example, shortly before Roberts became a judge, he successfully argued in the Supreme Court that a woman who suffered from carpal tunnel syndrome could not win a recovery from her employer, Toyota, under the Americans with Disabilities Act. A strict reading of the statute—always the preference of defendants in civil rights cases—meant the plaintiff had no right to make her case. Likewise, Roberts won a Supreme Court ruling that the family of a woman who died in a fire could not use the Alabama wrongful-death statute to sue the city of Tarrant, Alabama. The family of Alberta Jefferson, an African American woman, sued the city, claiming that the fire department failed to save her because of “the selective denial of fire protection to disfavored minorities.”
In one of his early decisions as chief justice, Roberts had a chance to put his expertise in standing doctrine to work—to characteristic ends. In DaimlerChrysler v. Cuno, a group of taxpayers in Toledo, Ohio, went to court to challenge local tax breaks that were given to the carmaker to expand its operations in the city; the Supreme Court held that the plaintiffs lacked standing and dismissed the case. In a broadly worded opinion that relied in part on the Lujan case (offering Roberts the same kind of satisfaction that Ginsburg received from citing the cases she had litigated), Roberts suggested that most state and local government activities were off limits to challenges from taxpayers. “Affording state taxpayers standing to press such challenges simply because their tax burden gives them an interest in the state treasury,” Roberts wrote, “would interpose the federal courts as virtually continuing monitors of the wisdom and soundness of state fiscal administration, contrary to the more modest role Article III envisions for federal courts.” As usual under Roberts, the citizen plaintiffs were out of luck.
The justices built their judicial philosophies on the foundation of their prior lives. From differing perspectives, Ginsburg and Thomas had long experience with (and strong feelings about) civil rights; Roberts had neither. Breyer had given years of thought to the role of the administrative state; Roberts had not. Scalia endorsed an overarching theory of the Constitution; Roberts did not. Kennedy viewed the Supreme Court in the context of an international community of judges; Roberts saw no such thing. But the chief justice had spent decades thinking about how to throw plaintiffs in civil cases out of court—the faster, the better. Civil procedure, so dreary even to most lawyers, was for Roberts the surest route to victory for his political side. One of Roberts’s fellow conservatives on the D.C. Circuit used to offer his law clerks a small cash bonus if they could find a procedural issue in any case that would allow the court to dismiss the action. Roberts provided no such cash incentives, but he shared the impulse.
The real-world implications of these procedural roadblocks were clear. With so many barriers at every stage of the process, plaintiffs’ lawyers hesitated before filing new cases, or did not bring them at all. The costs and risks were too high. (Legislative efforts at tort reform, like limits on punitive damages, compounded the difficulties for plaintiffs.) If claims could never get to trial because of procedural barriers, there would be fewer cases brought in the first place. This was especially true in civil rights cases—in “public law” cases, in Chayes’s phrase—because these ambitious undertakings had the greatest procedural vulnerabilities. The defense bar understood these economic realities and, with a sympathetic judiciary, pushed to capitalize on its advantages. As a lawyer and judge, Roberts was more skilled at this kind of work than anyone.
All of which helps explain the fate of Lilly Ledbetter.
The Goodyear Tire & Rubber Company was founded around the turn of the last century, in Akron, Ohio, which soon became known as Tire City. The firm vaulted to prosperity during World War I and the postwar boom, and in time its leaders began looking for new locations to open their vast tire-making factories. In 1929, Goodyear established a base in Gadsden, Alabama. By 1954, it was the largest tire-making facility in the United States. In the seventies, Goodyear prospered, even in the face of the energy crisis, by making steel-belted radial tires, which offered greater stability and traction than traditional models. Still, it was a polluting, competitive business, increasingly susceptible to lower-priced imports from abroad. For employees, even more than for the company, manufacturing tires was a tough, dirty way to make a living.
In 1979, a forty-year-old woman named Lilly Ledbetter went to work at the Gadsden plant. She already had fifteen years of experience at other factories, and Goodyear hired her as a production supervisor. In 1985, she scored the second highest of forty-five applicants to become an area manager. But Goodyear in Gadsden was never an easy place for a woman to work. One male boss pressured her for sex. When she refused, Ledbetter said, he lowered his evaluations of her work. When she confronted him about the poor evaluations, he told her that it was “a lot easier to downgrade you. You’re just a little female and these big old guys, I mean, they’re going to beat up on me and push me around and cuss me.” According to Ledbetter, that boss “continued to ask me out, go out with him. And I finally told him no. And then from that standpoint, my evaluations, the audits got worse.” Nevertheless, Ledbetter, who was one of the very few female area managers at the plant, did receive a top performance award in 1996. She planned to retire the next year.
Shortly before Ledbetter was planning to leave the company, someone anonymously slipped a note inside her mailbox at Goodyear. The message informed her that she was making $3,727 per month while men who were doing the same job were paid between $4,286 and $5,236 per month. The same kind of differences had persisted for years. Ledbetter hired a lawyer, and as she was required to do under the Title VII antidiscrimination law, she took her complaint to the Equal Employment Opportunity Commission. (In her last months at the company, after she had filed her formal protest with the government, she was transferred to a new job that required her to carry tires around the plant. Ledbetter was just short of sixty years old at the time. She asserted that the transfer was retribution.)
Ledbetter put her case before a federal jury in Alabama, which awarded her $3.3 million. The judge reduced the award to $300,000, but Goodyear still appealed the case to the Eleventh Circuit, which overturned the judgment altogether. The company’s claim was straightforward. Goodyear asserted that an employee alleging disparate pay must file an EEOC charge within 180 days of the pay decision giving rise to the disparity. Under that theory, Ledbetter could try to prove only that her 1997 pay adjustment (the last one she had received) was discriminatory. She had no recourse for the earlier years because she had missed the 180-day deadline.
In other words, according to Goodyear, virtually all of Ledbetter’s claims were barred by the statute of limitations. Like ripeness, mootness, and all the other procedural doctrines, statutes of limitations were another roadblock to successful civil rights claims in federal court. The argument was like the ones Roberts made in private practice. Even if Ledbetter had suffered discrimination (which Goodyear did not concede), she was barred from bringing her case because she had waited too long to charge the company.
The Ledbetter case reflected the practical impediments to plaintiffs in civil rights cases. She initiated the case in 1998, and the Supreme Court decided it nine years later. As with most plaintiffs, her lawyers worked for a contingency fee, which meant they earned nothing on the case for nearly a decade (or, as it turned out, ever). Not many lawyers are willing to take such risks. Indeed, Ledbetter’s case only reached the Supreme Court because after her loss in the Eleventh Circuit, her original lawyers brought the case to the Supreme Court Litigation Clinic at Stanford Law School. There, the teachers and students agreed to represent Ledbetter for free.
“Mr. Chief Justice, and may it please the Court,” Kevin Russell, the lawyer with the Stanford clinic began his argument on November 27, 2006. “A jury found that at the time petitioner filed for a charge of discrimination with the EEOC, respondent was paying her less for each week’s work than it paid similarly situated male employees and that it did so because of her sex.” The question for the Court was whether all of the paychecks that reflected the discrimination were violations of Title VII, or just the last one.
Ginsburg, the only woman on the Court at the time, ranked around the middle of the Court in terms of how often she asked questions: behind Scalia, Roberts, and Breyer, but ahead of Alito and, of course, Thomas. (Thomas asked his last question in oral argument during the previous term, on February 22, 2006; he has not asked one since.) The diminutive Ginsburg never looked smaller than she did on the bench; her head came nowhere close to the top of her leather chair. But in this case, like almost no other, Ginsburg dominated the argument. Her questions—they were more like speeches—left no doubt about where she stood. Shortly after Russell began, Ginsburg said, “Mr. Russell, I thought that your argument was that ‘yes, you know that you haven’t got the promotion, you know you haven’t got the transfer,’ but the spread in the pay is an incremental thing. You may think the first year you didn’t get a raise, ‘well, so be it.’ But you have, you have no reason to think that there is going to be this inequality.” Quite so, said Russell.
Roberts took the lead in defending Goodyear, relying on the venerable argumentative tactic of the slippery slope. Under the plaintiff’s theory, Roberts charged, companies could be liable for acts that were committed many years ago. “I suppose all they’d have to do is allege that sometime over the past. I mean, it doesn’t have to be 15 years,” he said. “It could be 40 years, right … that there was a discriminatory act, in one of the semi-annual pay reviews I was denied this, a raise that I should have gotten.”
Wrong, replied Ginsburg, who was two seats to Roberts’s left. If the case were based on a single disputed small raise many years ago, there would be no point to bringing a case. “If she’s going to bring a case [alleging] I got a 2 percent raise, he got a 3 percent raise, her chances are very slim,” she said. But Kennedy—the key vote—weighed in on Goodyear’s side, by raising the possibility that a company may have been sold between the time of the alleged discrimination and the commencement of the lawsuit.
In this case, Goodyear had an important advantage. The Bush administration, through the solicitor general, entered the proceedings and urged the justices to rule for Goodyear. Irving Gornstein, the assistant to the SG, told the justices, “Employees who allow the 180-day period to pass may not years later and even at the end of their careers challenge their current paychecks on the grounds that they are the result of a number of discrete individually discriminatory pay decisions that occurred long ago.” The Court agreed, by the customary 5–4 split (the same as in Gonzales v. Carhart, the abortion case that was pending at the time). Roberts assigned the opinion to Alito.
Alito had been a judge on the Third Circuit for fifteen years when Bush nominated him to the Supreme Court. That meant that he had served as an appeals court judge for longer than any of the other justices; at the time of his promotion, Alito had already written hundreds of opinions. So it was not surprising that Alito brought an established style that reflected his long experience. Circuit court opinions tend to be drier, less rhetorical than Supreme Court opinions, and this approach suited Alito’s careful, even phlegmatic temperament. In rejecting Ledbetter’s claim on statute of limitations grounds, Alito hewed closely to the facts and his view of the precedents. “She argues simply that Goodyear’s conduct during the charging period gave present effect to discriminatory conduct outside of that period,” he wrote. “But current effects alone cannot breathe life into prior, uncharged discrimination.… Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so.”
Alito was short on sympathy for Ledbetter but long on the risks cases like hers posed for corporate defendants. “Statutes of limitations serve a policy of repose,” he wrote. “They represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that the right to be free of stale claims in time comes to prevail over the right to prosecute them.” (A graceful stylist like Roberts would never have written such a clunky sentence.) The EEOC filing deadline, Alito went on, “protects employers from the burden of defending claims arising from employment decisions that are long past.”
As the senior associate justice in the minority, Stevens was responsible for choosing which justice should write the primary dissent. For workload purposes, Stevens (and Roberts) liked to spread these assignments around, and Ginsburg already had the major dissent in Gonazales v. Carhart on her plate. But since Ginsburg felt strongly about this case too, Stevens gave it to her as well.
Sex discrimination cases, like civil rights cases generally, had changed since Ginsburg was a litigator in the seventies. The Court in recent years had focused on affirmative action programs, testing whether racial or gender preferences violated the rights of the majority. But Ledbetter was not a case about special privileges. It was a case, simply, about equality, very much like the kind that Ginsburg herself had brought to the Court three decades earlier. Alito’s bloodless opinion, with its tender regard for the Goodyears of the world and none at all for the Ledbetters, inspired Ginsburg to unleash a powerful and thorough dissent. (At 6,200 words, it was nearly as long as Alito’s opinion for the Court.)
As someone who had actually litigated sex discrimination cases, Ginsburg had some idea of how they unfolded in the real world. “The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination,” she wrote. “Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee’s view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meat for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.”
This was obvious, of course, since it’s clear that employers that discriminate rarely make public announcements to that effect. Ginsburg also made short work of the slippery slope argument, noting she was only proposing to allow suits by plaintiffs who did not know they had been discriminated against until much later. For those plaintiffs who knew about pay differentials and simply waited to sue, Ginsburg noted, “No sensible judge would tolerate such inexcusable neglect.”
Ginsburg’s words were endorsed only by the three other losing justices in the case. And Ledbetter (both the case and the person) was still fairly obscure; the news media rarely pays attention to cases about procedural doctrines like statutes of limitations. But Ginsburg had a plan to turn Lilly Ledbetter, and her own dissenting opinion, into something more than just another quickly forgotten loss for the liberal quartet.
In this Ginsburg had an edge. Notwithstanding the arcane details of federal procedure at issue in the case, Ginsburg knew that Ledbetter’s predicament was easy to understand. Ledbetter had been a clear victim of discrimination and, perversely, the longer Goodyear violated her rights to equal pay, the weaker her case became. People outside the Court, and especially across First Street, at the Capitol, would respond to her story.
Ginsburg’s idea for her dissent was also rooted in an important difference between the Carhart and Ledbetter cases. Carhart was a decision based on the Constitution. The only people who could change or overrule it were the justices themselves. Accordingly, as Chief Justice Hughes put it, Ginsburg’s only recourse in her dissenting opinion in Carhart was to appeal “to the intelligence of a future day.” Ledbetter was different. It was not based on any constitutional provision. Rather, the issue in Ledbetter was the interpretation of an act of Congress—specifically, the statute of limitations provision of Title VII of the Civil Rights Act of 1964. Only the Court could interpret the Constitution—but Congress can always change a law.
On May 29, 2007, Ginsburg waited, sunken in her big chair, as Alito read his summary of the majority opinion. In her fourteen years on the Court at that point, Ginsburg had gone as long as four years between reading dissents from the bench. Now, only about a month after Carhart, she was reading another. That alone would have generated a good deal of attention.
In dissents from the bench, the tradition was for the justice to give, in essence, a shortened version of the published opinion. But that was not what Ginsburg did. Rather, she described the Ledbetter case in plain English, not the legalese of her dissent. “In our view, the court does not comprehend or is indifferent to the insidious way in which women can be victims of pay discrimination,” she said. “Today’s decision counsels, sue early on when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience. Indeed, initially you may not know that men are receiving more for substantially similar work. Of course, you are likely to lose a less-than-fully baked case.”
But Ginsburg was just warming up. (Overall, she spoke twice as long as Alito.) She then gave a detailed summary of Ledbetter’s long career at Goodyear and the acknowledged differences in her pay and that of comparably situated men; she went on to explain how those differences expanded and multiplied over the years. “As the court reads Title VII, each and every pay decision Ledbetter did not properly challenge, wiped the slate clean,” Ginsburg said. “Never mind the cumulative effect of a series of decisions that together, set her pay well below that of every male Area Manager.” All through these years, Ginsburg pointed out, Ledbetter had no idea that she was making less than her male peers.
At last Ginsburg came to the climax—and the point—of her long speech. “This is not the first time this court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose,” she said. Ginsburg was referring to a series of cases in the late 1980s when the Court made winning discrimination cases much harder. “In 1991,” Ginsburg went on, “Congress passed a Civil Rights Act that effectively overruled several of this court’s similarly restrictive decisions including one on which the court relies today.” In other words, in the 1991 act Congress repaired the damage the Court did in a series of wrongheaded decisions.
“Today, the ball again lies in Congress’ court,” Ginsburg concluded. “As in 1991, the legislature has cause to note and to correct this court’s parsimonious reading of Title VII.”
Rarely in the history of the Court had a justice, speaking from the bench no less, called so directly on another branch of government to nullify a decision by her colleagues. And rarely had a justice’s words in dissent created so powerful and immediate an impact. Ginsburg’s words were intended to, and did, draw the notice of the Democratic legislators who had just won control of both houses of Congress. In addition, the Democratic candidates for president—among them, at that point, Hillary Clinton, Barack Obama, and Joseph Biden—quickly took up Ginsburg’s challenge. Thanks to Ginsburg, a legislative overruling of Ledbetter v. Goodyear Tire & Rubber Co. became a central plank of the Democratic Party.
Very suddenly, in her seventieth year, Lilly Ledbetter was a famous woman.