Samuel Alito is a Dork
I’m availing myself of my guest-posting privileges here to ask fellow FMH readers what you all think of yesterday’s Supreme Court ruling that, heck, so long as a woman doesn’t catch on to gender-based pay discrimination during the first six months she works for a company, her employer shouldn’t be penalized for committing the crime. Cause, you know, the only real crime is when an employer is stupid enough to get caught out that quickly.
This ruling goes against the Equal Opportunity Commission’s long-established interpretation of the law in question. It’s a reversal of prior rulings, and the standard Justice Alito, writing for the 5-4 majority, sets for proof of pay discrimination is frankly nonsensical.
I’m fuming about this. Really fuming. What good does legislation against discrimination do if our government doesn’t enforce it?
Dork isn’t a strong enough word. I was also very angry, listening to this little news item on NPR. Come on, Senate, make things right. Please. This isn’t a war spending bill, it’s basic human decency and a right to equal opportunity. Oh wait.
Comment by sare — May 30, 2007 @ 11:09 pm
Well, would you expect anything less from the right-leaning court? Heck, I’m surprised their decision didn’t say that women belong in the home, anyway, so why are they complaining about being paid less when they’re taking jobs away from men and shouldn’t be there in the first place. Next up: the Clarence Thomas decision that sexual harassment in the workplace doesn’t exist if you don’t object (verbally and in writing, in triplicate) from the first instance, because hey, if you don’t object the first time, surely you’re consenting, right?
Comment by Quimby — May 30, 2007 @ 11:15 pm
I dunno, Taryn. The court’s decision was a pretty straightforward interpretation of pretty specific statutory language.
What good does legislation do?, you ask. Well, legislation could _fix_ that statute.
Thing is, the Civil Rights statutes are disasters. There are some really big loopholes and blind spots. And really, even many feminist legal scholars think that the real solution is for the legislature to fix the statutes. To date, the Court has often read the statutes in a fuzzy enough way that claims go forward. But the underlying statutory framework is really creaky.
For example, there is no federal statute that bars sexual harassment. None. Zip. Zero. Congress has never really cared enough to pass a statute on the topic.
A series of court decisions in effect created the doctrine, out of the 64 Act, which it really does not fit in. The 64 Act bars discrimination on the basis of gender — not harassment. In a series of really-stretch-the-language-of-the-statute-to-the-breaking-point decisions, the court created a cause of action for sexual harassment, on the grounds that it could be a way of discriminating between men and women. I.e., an employer who harasses women but not men.
This is a really strained reading of the statute. And as a result, it breaks down in all sorts of places. For instance, if the employer harasses both men and women, there is nothing in federal law to stop him. Really! And there’s case law on it!
Meanwhile, sexual harassment law becomes more and more muddled. And there’s no statute to provide guidance. Congress needs to get off it’s ass and pass a statute. However, it has not had to do so, because the court has covered the gap, through it’s stretching of the statute.
Same here, really. The statute says file in 180 days. The court is just doing what the statute says. Congress needs to get off it’s ass and amend the statute.
I like the Civil Rights Act. But it really, really needs to be fixed in places, and the Court’s history of often being really lenient in reading the statute for a long time, has let Congress off the hook.
So I’d say, don’t blame Alito (much) — blame Congress, and urge them to fix things, instead of hoping that the Court continues to cover up their mistakes for them.
Comment by Kaimi — May 30, 2007 @ 11:35 pm
Kaimi,
I’m all for new legislation. But Alito’s still a dork, on general principal.
Comment by Serenity Valley — May 30, 2007 @ 11:55 pm
Let’s summarize: Dork, dork, reasoned comment about the role of Congress in this mess, dork.
So far, I see our esteemed law professor’s arguments holding a bit more weight.
Comment by queuno — May 31, 2007 @ 12:13 am
(half way through The Price of Motherhood)
Like I need one more reason right now to be pissed off by the way the law treats women.
And Alito is a Dork.
Comment by fMhLisa — May 31, 2007 @ 12:15 am
I agree with queuno. The name-calling isn’t exactly winning me over.
It’s not a judge’s job to cover for Congress. If there’s no law on the subject, the courts shouldn’t be making it up. When judge’s cover for Congress, it just shifts public attention from where it needs to be - the legislative branch.
Comment by Seth R. — May 31, 2007 @ 5:30 am
Echoing the sentiment that Congress needs to fix this.
Besides that, I think every SCOTUS justice is a dork for his/her party-line “legal reasoning.” I know it’s naive to expect that they would treat every case with pure objectivity, but I’m getting tired of these “Conservative justices support big business/social conservativism, and vice-versa” rulings. Even if the majority here based their reasoning solely on the statute, they should have called for additional clarifications from Congress, since the past couple of decades of legal policy seem to have had a much different interpretation of the statute of limitations here. But no such call (as far as I know), because that violates party lines. Bleargh. Partisan legal reasoning sucks. They’re all dorks.
Also, Kaimi’s a law professor?
Comment by Bro. Jones — May 31, 2007 @ 6:38 am
Putting aside the merits of the decision barring wage discrimination claims, this decision reveals a disturbing trend on the Court. And I’m not talking (only) about the trend to the political right, but that Justice Ginsburg, a woman, is leading the charge to enforce rights long established and enjoyed by women to which the male justices on the bench seem indifferent at best and, at worst, unwilling to recognize.
(Note the Court’s language in Gonzales v. Carhart where the Court stoops to a new low by questioning a woman’s competence to make difficult decisions about her medical treatment or to give informed consent).
Male justices, and men in general, rarely consider womens’ rights and responsibilites to be on par in importance with their own, but the current male justices on the U.S. Supreme Court are even less enlightened than average. In sum, the trend on the Supreme Court for the male justices to leave “woman’s issues” to the sole woman justice reveals a battle of the sexes that women always lose.
(And as long as we’re calling names, Justice Alito may be a dork, but Justice Kennedy is a traitor!)
Comment by ECS — May 31, 2007 @ 7:28 am
ECS,
That’s a pretty inflammatory charge, and one I take umbrage with. You seem to be asserting that men are incapable or unwilling to defend the rights of women, and are basing this (as best I can tell) on two Supreme Court decisions, at least one of which arguable interprets correctly the plain language of a statute. You may be right that the trend on the SC is to devalue women’s issues (although I think that’s far from clear), but to use that to generalize to “men in general don’t consider women’s rights important” is just offensive.
And I agree with the general tenor that the Court shouldn’t be responsible for always fixing bad legislation, because that lets the legislators get away with laziness and grand partisan statements. (Like, for example, I can ban abortion and pander to my consituents, because the courts will overturn the law anyway. Or, I don’t have to worry about what the bill says, because the courts can fill in the missing language.)
Comment by Sam B — May 31, 2007 @ 7:46 am
LOL, Sam B. No, I’m not basing my “inflammatory” statement that men generally don’t respect the “rights” of women on two recent U.S. Supreme Court decisions. I’m basing that statement on 5,000 years of recorded history where women do not have any “rights” to speak of. Oh, and also on the status of non-white, non-Western women and women living in poverty (i.e., most women) in the world today.
Comment by ECS — May 31, 2007 @ 8:04 am
Technically, the Court shouldn’t be expected to “fix” bad legislation (separation of powers, and all) but the Court hides behind this excuse far too often when it wants to avoid making a decision. Wimps.
Comment by ECS — May 31, 2007 @ 8:10 am
P.S. The NY Times ran an interesting article today about Justice Ginsberg - noting that she took the extra step of reading her dissent in the wage discrimination case from the bench.
From the article:
Comment by ECS — May 31, 2007 @ 8:34 am
“The statute says file in 180 days. The court is just doing what the statute says. Congress needs to get off its ass and amend the statute.”
I second (or third or fourth this), Kaimi. I thought Ginsburg was a voice of reason.
It’ll be interesting to see how far Clinton will pick this up and run with it.
Seriously, channel the anger. Let’s get busy writing our congressional representatives. The law should change so no more Ms. Ledbetter’s get screwed.
Comment by Lupita — May 31, 2007 @ 8:43 am
Serenity,
I believe your first paragraph mischaracterizes the ruling. The law, as I understand it, states that one should file a complaint within 180 days of the occurence of the discriminatory act. Alito’s (and the majority’s) position is that the discrimination occurs when the pay is set and the complainant has 180 days thereafter to file a complaint. Ginsburg’s dissenting position is that the 180 day window is reset every time a new pay is set. Therefore, according to Alito one cannot sue today for having been paid less 10 years ago, while Ginsburg argues that one can. The letter of the law, in my opinion, supports Alito’s reading. I sympathize with and support the ends that Ginsburg is trying to achieve, but I don’t think the law as written allows for it. I agree with Kaimi that this is a matter that needs legislative redress.
Comment by Schwartzer — May 31, 2007 @ 8:45 am
Uh, sorry for the double post. Don’t know what happened there. If this posts twice, I’m doubly sorry.
Comment by Lupita — May 31, 2007 @ 8:55 am
ECS,
When you expand the scope to non-white, non-Western women, I can’t disagree (although I admit to having a very western-centric view, so I can’t agree from knowledge). If that was your point, then I’m with you, for as much as that’s worth. But because your were referring to Western Supreme Court justices, I assumed your demographic was educated Western men. Even there, I’ll grant you, not everybody is a beacon of enlightenment (Columbia College didn’t admit women until the mid-80s if I remember, which provided me and my wife huge amounts of entertainment when the program at my graduation was boasting of their women graduates; most were from the law school, Barnard, Teachers College, or other institutions which had been absorbed by Columbia, but weren’t Columbia). But in general, the people I’m around professionally are very attuned to, among other things, women’s rights (and I’m not sure why you sued the scare quotes—I didn’t in my response, and you didn’t in your initial post), and don’t treat them as less (or un-) important.
Or, in other words, what do men today have to do to shake your spector of “5,000 years of recorded history where women do not have any ‘rights’ to speak of”?
Comment by Sam B — May 31, 2007 @ 8:58 am
I have some ideas, but what do you think?
Also, I’m not sure what you mean by men you know being “attuned to women’s rights”. Is it because these men say that they believe women and men should be treated equally? As we now recognize when we read in our own country’s founding documents, talk is cheap.
P.S. The “scare quotes” were not to scare you off, but were to emphasize that the definition of “rights” is controversial - particularly when it comes to women.
Comment by ECS — May 31, 2007 @ 9:21 am
Let’s not forget that two LOWER courts ruled that her claim was valid because the last instance of gender discrimination fell within the alotted time period. This isn’t about lame legislation, it’s about a really lame (and I think, tenuous) interpretation of legislation. Do we have to spell everything out in order to protect the rights of vunlerable populations? Are our laws going to have to become more and mores restrictive in order to prevent abuse?
This is what the Supreme Court is supposed to be for– the fair and knowledgeable interpretation of existing law. I dunno what the rest of y’all are talking about.
Comment by sare — May 31, 2007 @ 9:26 am
ECS,
I don’t really think a darn thing. I simply go through my day, trying to treat everybody I come in contact with with respect and dignity. I don’t really know (or much care) if that makes up for 5,000 years of bad things that have happened.
(And thank you for your explanation of why you put “rights” in quotes. I figured you had a reason, but had no idea what it was.)
Comment by Sam B — May 31, 2007 @ 9:29 am
I think that Ginsburg is a dork. Allowing a former ACLU lawyer on the court was a mistake. She should recuse herself when hearing a signifigant number of cases
Comment by anon — May 31, 2007 @ 9:31 am
No offense, anon, but do you hold all the Justices to that standard? I.e., should CJ Roberts always and forever recuse himself any time a Hogan and Hartson lawyer argues? (Or maybe every time an H&H client—or former client—makes an appearance?) Or Alito every time the Solicitor General’s office makes an appearance (b/c that would really suck)?
Comment by Sam B — May 31, 2007 @ 9:36 am
You and the male justices of the U.S. Supreme Court
Comment by ECS — May 31, 2007 @ 9:36 am
Kaimi,
Thanks for clarifying things so well for those that dont understand the issues. It drives me crazy when people flip out about things they dont understand and havent bothered to really study out. Gays in the military is the same thing. It is literally against the law to be gay in the military. The military can’t change that - the Senate has to. But they are too gutless to do it.
Comment by Thankful — May 31, 2007 @ 9:43 am
Schwartzer,
The first paragraph wasn’t meant with an entirely straight face, of course. But the simple truth is that the way they ruled, managers only have to get away with pay discrimination for the first six months (180 days) a woman is on the payroll to be able to discriminate against her for the rest of her time with them. Honestly, from what I read in the NY Times and on Slate, the justices were pretty clear about that.
Kaimi,
I tried to comment last night, but something’s up with the website. Since my post was motivated by a desire to have actual lawyers explain the problem, I feel smug - you did a great job explaining the underlying problem with the law. Thank you!
I’m all for a change in the legislation, and I intend to call my senator’s office and tell them so. (Though Alito will still be a dork after it’s passed).
ECS,
You rock.
Comment by Serenity Valley — May 31, 2007 @ 9:45 am
Sorry. My last comment was innacurate, only one lower court ruled in favor. I guess what I’m saying is that you can either count the time from her first hire, from her last negative evaluation, or from her last paycheck. The first court chose paycheck, the Supreme court ruled in favor of the company because they interpreted the law in this case differently, saying that this (thinking of it in terms of each paycheck being a new instance of descrimination) doesn’t leave enough room for companies to not feel liable for decisions made several years ago.
The problem is that gender discrimination is a hazy thing– sometimes you’re not sure if one instance was accidental, remarkeable, or maybe you’d wonder if your own performance was actually reflected by your evaluation in this case. It takes a long time, some times, to realize that you are being discriminated against. Alito is saying that she ought to have filed at the first instance of discrimination, that each new paycheck doesn’t start the clock again.
I think that’s crap. Each new paycheck should start the clock again, because each time she is paid less the her colleagues for no other reason than her gender, she is being discriminated against. Alito says this makes the company too vulnerable because those responsible for the discrimination only had a hand in the initial decision making. I say that if you’re perpetuating discrimination by tasking your underlings (payroll, lower level managers, etcetera) with discriminatory tasks, you’re still responsible for that discrimination and therefore liable.
Comment by sare — May 31, 2007 @ 10:13 am
Yeah ECS,
That was pretty much offensive. Rubbing people’s noses in the past is rarely all that effective to begin with even if it gives a sense of vindictive pleasure. When you’re doing it to the people who are already on your side to some degree or another, it’s just plain tacky.
I don’t see much real difference between your comment #9 and George Bush’s incredibly boorish “you’re either with us or against us” stinkbomb he dropped on the diplomatic community.
Yeah, there are rapists, harassers, and oppressors all about us. But I’ll thank you not to take it out on me. I have faults enough without being saddled with everyone else’s.
Comment by Seth R. — May 31, 2007 @ 11:02 am
Chill out, Seth. Did you not see my smiley face? Or that I explicitly made an exception for sensitive, caring, feminist men just like you in #9’s sweeping overgeneralization?
Comment by ECS — May 31, 2007 @ 11:08 am
Nope, sorry.
Comment by Seth R. — May 31, 2007 @ 11:13 am
As long as we are on the topic of pay inequity, perhaps someone here could take a break from the anger long enough to explain to this dork how come, among workers who work less than 36 hours a week, women earn 115% of what men earn. Also, if you could point to an account where justice Ginsberg has bravely denounced this practice. Or, for that matter, where any of you have addressed it.
Comment by Mark IV — May 31, 2007 @ 11:29 am
Mark IV where did your statistic come from?
Comment by Paula — May 31, 2007 @ 11:41 am
#19–Do we have to spell everything out in order to protect the rights of vunlerable populations?
Yes! Because we’d rather have the people we vote for hopefully putting what the people want into law rather than appointed people essentially making their own law. I’d rather protect against the latter and have to deal with spelling everything out than Judges and Justices becoming our legislature. That would affect everything, even if it did help gender issues in this case.
Comment by halcyon — May 31, 2007 @ 11:46 am
I can’t imagine a more asinine ruling on this topic. In the first six months of a job, who has the time or the political capital to go around finding out what all her male co-workers earn so she can make sure her pay is equitable?
Comment by Ana — May 31, 2007 @ 11:55 am
Yes, and this is the problem with most anti-discrimination laws. I’m not sure what proof Ledbetter had that she was being paid less strictly because of her gender, but I have to assume that until she knew she was being paid less than the men, she didn’t have any complaints about her pay…or she would have asked for more money, wouldn’t she? (Or is that sort of pro-active behavior too forward for a woman?) That issue has nothing to do with the EEOC law, but that’s exactly my point. If we can’t trust employers and workers to work out their own mutually beneficial contracts, then yes, the answer is more restrictive laws. Most of what’s in between is pretty useless.
So I must side with the dork on this one.
Does anyone know of any cases of male part-time workers suing their bosses for discrimination?
Comment by madhousewife — May 31, 2007 @ 12:03 pm
Paula, thanks for asking.
The pay disparity for part-time workers is pretty well documented. A liberal source is labor union. A conservative source is National Review.
Comment by Mark IV — May 31, 2007 @ 12:06 pm
Mark IV–the statistic explains why this gap exists–because the majority of those underpaid men are under twenty five, where wages are lower anyway (id est high school and college students). However, the majority of women working part time were over twenty-five. And if what Crittenden asserts in her book is true, a majority of these women were probably working moms or minorities working at jobs that should be paying better for their labor as adults anyway. However, the study didn’t say that, so I’m just assuming (and I’m biased I admit). Anyway, the statistic doesn’t bother me that much because it looks like it was more compariing apples and oranges rather than grannysmith and honeycrisp.
Comment by Lessie — May 31, 2007 @ 12:15 pm
As I read the story, the reason the Supreme Court even took the case in the first place was that there was a split among the lower courts. This decision would be more surprising if there were no conflict. As someone who advises management on discrimination cases, I am surprised that the Court decided to interpret the statute differently from the way the EEOC did. I don’t like the EEOC, and think they are frequently wrong, but they are the agency given the responsibility for interpreting the statute, and normally that interpretation would be given more deference. If I had been given these facts as I understand them, I would have advised my clients to try to settle, and would not have challenged the EEOC’s interpretation. Under this ruling, I would have been wrong.
Comment by CS Eric — May 31, 2007 @ 12:16 pm
Because conservative opinions are never based on anything but fear and bigotry?
Comment by madhousewife — May 31, 2007 @ 12:19 pm
Lessie, you’re correct, of course, and that is exactly my point.
There are usually reasons other than discrimination that explain much of the pay gap. If this case yesterday was a simple case of Ledbetter getting swindled, then I share the fury. But discussions about the pay gap usually start and end with righteous indignation and denunciation of all those penis-wearing bastadges, as though that explained everything. The reasonable and nuanced approach you take in explaining the part-time wage gap is sorely missing in the discussions about the full-time wage gap.
When we take the same factors you enumerated - years of service and age - and then also include others, like the willingness to travel or work overtime, we can account for all but 2-3% of the full-time wage gap.
I also want to go on record as strongly favoring measures that would accomodate mothers in their careers.
Comment by Mark IV — May 31, 2007 @ 12:30 pm
Mark IV… sounds like carrie lukas of the national review seriously needs to read crittenden’s book
Comment by G — May 31, 2007 @ 1:00 pm
Seriously G. Mark IV, I’m just curious, are you reading it? She goes into some of the thingsyou mentioned in her book.
Comment by Lessie — May 31, 2007 @ 1:13 pm
It will be a great day when “mothers” in the above quote is replaced by “fathers”.
Comment by ECS — May 31, 2007 @ 1:15 pm
Oh, and madhousewife, were you being serious or sarcastic? Just curious.
Comment by Lessie — May 31, 2007 @ 1:15 pm
Many thanks to Kaimi, halcyon, Sshwartzer, and the other reasonable commenters who have stuck to the issues. I’ve been rather surprised at how this decision has turned otherwise rational adults into squabbling children. Particularly unfathomable is the ire directed at Justice Alito et al. — most people don’t like the result, but cases like this are sometimes the only thing that can spur a lazy legislature to do its job.
I get the sense that several members of this discussion would have preferred a holding based exclusively on the result. I find this “ends justify the means” view to be extremely short-sighted and problematic. Thankfully, such a perspective isn’t shared by most of the judiciary. Reasonable minds may differ as to the statutory interpretation, but the plaintiff’s specific plight certainly should not be the determining factor in establishing case law. It’s a terrible result, but it’s not the Court’s job to fix all of Congress’s mistakes.
Comment by Peter — May 31, 2007 @ 1:16 pm
Many thanks to Kaimi, halcyon, Schwartzer, and the other reasonable commenters who have stuck to the issues. I’ve been rather surprised at how this decision has turned otherwise rational adults into squabbling children. Particularly unfathomable is the ire directed at Justice Alito et al. — most people don’t like the result, but cases like this are sometimes the only thing that can spur a lazy legislature to do its job.
I get the sense that several members of this discussion would have preferred a holding based exclusively on the result. I find this “ends justify the means” view to be extremely short-sighted and problematic. Thankfully, such a perspective isn’t shared by most of the judiciary. Reasonable minds may differ as to the statutory interpretation, but the plaintiff’s specific plight certainly should not be the determining factor in establishing case law. It’s a terrible result, but it’s not the Court’s job to fix all of Congress’s mistakes.
Comment by Peter — May 31, 2007 @ 1:17 pm
G., you may be right.
I don’t want to jump the gun on the upcoming discussion, but I hope we can have a robust and spirited exchange about some of Crittenden’s ideas, and subject them to critical analysis.
Comment by Mark IV — May 31, 2007 @ 1:25 pm
Peter, the Supreme Court regularly disregards these principles of judicial restraint when the majority finds it convenient. See, e.g., Bush v. Gore, Lawrence v. Texas, etc. Appellate cases are typically won and lost on the facts, not the law.
Comment by ECS — May 31, 2007 @ 1:28 pm
ECS, damn straight. But that’s the problem with comparing men and women in the workplace.
If an employer offers flextime instead of a raise, more women than men will take the flextime. To what extent, years later, is she entitled to complain about her lower wages? It beats me.
Comment by Mark IV — May 31, 2007 @ 1:35 pm
Er, that is the point, Mark IV. Why should more women than men take the flex time? Why aren’t men clamoring to be home taking care of the children?
Comment by ECS — May 31, 2007 @ 1:41 pm
Comment by sare — May 31, 2007 @ 1:45 pm
Yep, that is my point, too, ECS.
By the way, more women than men take flextime, even if they aren’t mothers. Interesting, huh?
Comment by Mark IV — May 31, 2007 @ 1:45 pm
ECS - You sure are right about those two cases, but I think we all hope that those are outliers. Strange fact patterns make for bad precedent. I’m not sure whether the law or the facts is more important in appellate cases, but I know which one ought to be determinative.
Comment by Peter — May 31, 2007 @ 1:49 pm
Mark IV,
I’m going to second and third the idea that you need to read The Price of Motherhood. Crittenden looks at all these ideas in very close detail, and when you speak of issues “other than discrimination” that explain the wage gap, it really depends on what you mean by “discrimination.” Interestingly, (just read) in a study of *fathers* who choose to work fewer hours, say 1-2% fewer, in order to care for a sick child or attend a few baseball games, or a preschool graduation or whatever, over time they are “discriminated against” by earning on average 20% less than single men and fathers who take no family time off. For mothers the numbers are much huger.
Sure it makes “discrimination” more nuanced than a bunch of woman haters who want to keep their heels on slender female necks. But it’s still descrimination, IMO.
Comment by fMhLisa — May 31, 2007 @ 1:51 pm
Interesting question, given the above discussion I’m guessing it’s probably all Justice Alito’s fault. Because he is a dork after all. Right?
Comment by Aluwid — May 31, 2007 @ 1:56 pm
Given that the U.S. Supreme Court grants cert for a tiny, tiny percentage of those who petition, “strange fact patterns” can be a qualifying characteristic for successful cert petitions. Bush v. Gore and Lawrence v. Texas (especially) certainly aren’t outliers in this regard.
Of course we should give deference to the rule of law and stare decisis, but I don’t believe that these factors are outcome determinative. Neither does the Supreme Court.
Comment by ECS — May 31, 2007 @ 1:59 pm
fmhLisa,
Yeah, I’m reading, and I plan to participate in what I hope is a discussion and not just a hallelujah chorus.
The example you cite would be one of discrimination against parents, right, since it applies to both men and women?
Let me just say again that I think these are important questions to ask, and I think the answers can be pretty exciting. And we are likely to get better solutions when we look for good explanations.
I’ve gotta get back to work now or my (female) boss will start creating a hostile work environment for me and make me feel marginalized.
Comment by Mark IV — May 31, 2007 @ 2:04 pm
Isn’t that rather the point about the rule of law? Removing the rule of law and more or less merging legislators, executors and judges into one group sounds great until one implements it…
Comment by Clark — May 31, 2007 @ 5:42 pm
Well yes, but surely discrimination due to performance isn’t something bad. Is it? I mean for many jobs not being there can be fairly significant.
Comment by Clark — May 31, 2007 @ 5:52 pm
#38 - Where do you get “fear and bigotry” from? It’s a pretty much established that conservative elements of society don’t think mothers should work outside the home. Just look at the church. Or for a non-American example, look at John Howard.
Comment by Quimby — May 31, 2007 @ 6:21 pm
(and yes, I am saying that the Supreme Court, with its current justices, can be classified as a “more conservative element of society”, and yes, I am saying that the church should be considered an “American example,” because although it pays lip service to being a “world church”, it’s still heavily ethnocentric.)
Comment by Quimby — May 31, 2007 @ 6:25 pm
Also, a comment on the gender division: I think it’s fascinating that almost all posts in favor of this are written by men, and vice-versa. (of course we can’t really know, this being the internet and all.) I think that shows just how great the gender divide still is in the US - how much we still don’t see eye to eye.
Comment by Quimby — May 31, 2007 @ 6:32 pm
Is that not how you characterized the motives of the justices in the majority? As “right-wing” sexists? People who fear the social consequences of women in the paid workforce (quelle horreur!), who don’t consider women to be fully equal with men and therefore reason that they aren’t entitled to equal treatment before the law? I realize you were being facetious to some extent, but as long as you’re pointing out the gender gap, note how many of the female commenters have placed the motives of the justices under suspicion, as though a decision against the plaintiff could only be motivated by sexism (also known as fear and bigotry–more general terms appropriate for various forms of prejudice and discrimination). It is no more fair than suggesting that Justice Ginsberg has no business being on the Supreme Court because she worked for the ACLU, or that her decision stemmed directly from her contempt for traditional values. It is that big of a stretch.
Comment by madhousewife — May 31, 2007 @ 7:44 pm
I definitely think the Supreme Court is “right wing” and I don’t think that’s an unfair characterisation at all. In fact I doubt you’ll find a single source outside of Fox News that would not characterise the Supreme Court as “right wing.” The rest is your conjecture and interpretation of what I said, based on absolutely nothing but thin air.
Comment by Quimby — May 31, 2007 @ 7:52 pm
No. I said they were right-wing. At no time did I use the word “sexist.” At no time did I say they “therefore reason[ed] that they aren’t entitled to equal treatment under the law.” Most right-wing elements of society do not think it is ideal for women to work outside the home. The rest is your conjecture.
Uh, I pointed out the gender gap and said it was a perfect example of our inability to see eye to eye on gender issues. I didn’t comment any further than that.
You are taking, what, 3 or 4 sentences I wrote, and adding in a whole bunch of stuff I didn’t say. Are you going to argue that the Supreme Court isn’t conservative? Are you going to argue that conservative people as a general rule don’t think women should work outside the home? Or are you just going to put words into my mouth and take offense at something I didn’t say in the first place?
Comment by Quimby — May 31, 2007 @ 8:05 pm
okay, so this is way off topic (i.e. threadjack, sorry), but regarding the up and coming book club: Mark IV, “I plan to participate in what I hope is a discussion and not just a hallelujah chorus.”
are you kidding? didn’t you check out the comments generated just by Artemis introducing the book?
alright, now back to our regularly scheduled discussion of the dorkyness of our elected and appointed leaders.
Comment by G — May 31, 2007 @ 8:09 pm
Wait, I thought we were talking about the case that was just decided. How did this degenerate into Us vs. Them? (with “Us” being right and enlightened, and “Them” being dorks, and even worse… Right Wing!!! Gasp!
) Let’s talk about the problems and what we could do to fix them with out bringing up all the baggage that has been hashed out over and over and never gotten anywhere. Everyone here wants to do the right thing. Start from there and work together.
Also, I’m a woman, and I don’t think it’s that interesting that the comments are going down the gender divide. Many women participate in forums like this for a sense of community, and women who disagree with the status quo here aren’t going to be a part of this community if they don’t feel like they have much in common with the other women. I know this isn’t the case always, but I do think it’s a big reason why there aren’t more dissenting women voices here.
Back to the case, I’m all for fixing the law and code, but not through the courts! I want to be able to be involved through my elected legislator. I don’t want the courts to have to stretch written law to make things right. I’d much rather that the elected officials do that.
Comment by halcyon — May 31, 2007 @ 8:38 pm
madhousewife, have you read the majority opinion in Gonzales v. Carhart? There’s plenty of fear and bigotry written there.
Comment by ECS — May 31, 2007 @ 8:43 pm
Clark, there were no statistics included specifically about performance (at least I don’t remember them). But you are setting up a false comparision anyway. While the company itself *may* have a !very! slight decrease in productivity from a child-focused father, what about the long term value to society and to businesses when fathers are involved in their children’s lives? Does that father-value count for nothing?
A 1% decrease in work attendence translating to a 20% decrease in salary seems a pretty drastic consequence, and will insure that men will hesitate, even refuse to invest time in their children. I’ve seen this in my life, first hand. The choice between being passed over at work, versus missing important moments in my kid’s lives is killing my dh. It kills him! He want to be there, but he knows it’ll cost him dearly, so he rarely is.
A high price to pay for men wishing to be involved and loving fathers. Is this really the consequence we want fathers to have to choose? A 20% pay dock for being involved in your children’s lives? Are the children’s lives valued at nothing? Is their father’s attention so valueless to us as a culture that we should not support their involvement rather than punishing them very severly for it? Because as it is now, we do punish parents who want to be involved in their childrens lives. That much is Clear.
And yes Mark, that is descrimination against parents rather than against women, however, the descrimination is much more pronounced for women. This is just the example I just read.
Comment by fMhLisa — May 31, 2007 @ 8:46 pm
I’m not arguing that the Supreme Court isn’t conservative. And I think it’s disingenuous to wonder why these particular conservatives don’t just come out and say women don’t belong in the workforce and then claim you don’t think that necessarily make them sexists. How would you characterize such a position? What word would you use, specifically, since “sexist” doesn’t fit the bill?
You won’t own the implications of your comments. It’s one thing to disagree with the majority ruling. Attacking someone’s motives is another thing. Why bring up this right-wing tendency to frown on working mothers if not to attack motives rather than judicial philosophy? You might not like their judicial philosophy–as far as I’m concerned, you can even call Alito a “dork” because you don’t like his judicial philosophy–but how does this particular ruling prove that he or any of the other four justices has this Cro-Magnon view of gender roles?
And I don’t agree that conservatives “as a general rule” are against women working outside the home. You are dismissing thousands of secular conservatives, libertarian-style “conservatives,” and all the other people right of center who don’t get their political talking points from Jerry Falwell, who would nonetheless side with the majority on this case, for reasons that have nothing to do with their opinions on working mothers or working women in general. You must have a very narrow definition of “conservative,” not unlike those narrow definitions of “Mormon” and “feminist” that we so often bemoan here.
Incidentally, my comment on the other gender gap on this thread was a clumsy segue from your observation to mine. That’s all.
P.S. I have never in all my born days watched Fox News.
Comment by madhousewife — May 31, 2007 @ 8:46 pm
#57
I’m not arguing that we don’t need laws. I’m trying (unsucessfully) to make the point that laws are only laws, and subject to loopholes and human interpretation, no matter how specific and noose-like you make them.
That’s why we have a judiciary branch of government– for the interpretation of intent of law, constition, etcetera. I’m mostly referring to the commenters who say that it’s not the supreme court’s responsibility to “fix congress’s mistake”, well, no it’s not. It wasn’t a mistake, that law that Alito interpreted. It was a good law.
It was just a nasty interpretation of law. So yes, Alito (and the others who corroborated his decision) failed in his responsibility.
Comment by sare — May 31, 2007 @ 8:55 pm
I have read Gonzales v. Carhart, and I didn’t catch the fear and bigotry, no. But then, I’m not in the habit of discerning motives in between the lines of judicial opinions. They’re difficult enough to read without adding divination to the task.
Comment by madhousewife — May 31, 2007 @ 9:00 pm
madhousewife, I suppose what got the hair up on the back of my neck (to use a really silly phrase) is that you took what was, by your own admission, obviously a facetious statement, and added (in my opionion) layer upon layer of conjunction to it. But I probably shouldn’t have responded as I did. I’m sorry. I was unncessarily confrontational.
I do think this current Supreme Court has a bias against women. I do think that’s largely because it’s conservative. Yes, I realise that probably reflects poorly on my narrow-minded liberalism, but in general I think liberals have a better track-record when it comes to gender equality than do conservatives. I also think there is much US law, as it is written, has a bias against women.
For some reason, though, I am hesitant to use the word “sexist” and apply it to a body or organisation. For some reason - and again I acknowledge my logic may be faulty here - it seems more apt to describe an individual than an organisation. So, while I think that Alito is sexist, I don’t want to say that the Supreme Court is sexist, because that seems too broad an accusation.
Comment by Quimby — May 31, 2007 @ 11:59 pm
Our operating assumption on this thread appears to be that we are certain Sandra Day O’Conner would have voted differently in this case, thereby saving us all from the hell of bigotry, fear, dorkiness, oppression, etc.
Our assumption is wrong - in a previous civil rights case, justice O’Conner ruled that 180 days means, you know, 180 days. Please consider:
I think it’s pretty funny how often we put our own blindness and prejudice on display when we start tossing around accusations of bigotry.
Comment by Mark IV — June 1, 2007 @ 4:12 am
That hasn’t been my operating assumption on this thread at all. The only thing “certain” about the U.S. Supreme Court is that the log rolling to accomplish the justices’ personal agendas guarantees a level of uncertainty regardless of the justices’ stated political leanings or gender . Republican Richard Nixon appointed Justice Blackmun, afterall. Ditto Eisenhower and Justice Douglas.
madhousewife, the opinions can be difficult to read. Here’s an interesting analysis comparing Gonzales to previous U.S. Supreme Court opinions, pointing out the specific language in Gonzales I referred to in my comment above.
Comment by ECS — June 1, 2007 @ 8:40 am
ECS,
The original post linked to the article in the NYT by Linda Greenhouse, which contains this line:
My point in comment in # 73 was to show that Greenhouse’s reasoning is obviously mistaken.
The only thing “certain” about the U.S. Supreme Court is that the log rolling to accomplish the justices’ personal agendas…
That has been my impression, and I’m glad to have that confirmed by you, since you know more about it than I do. I think the article by Greenhouse does a serious disservice to Ginsburg, by painting her as a retiring, demure “white glove” woman who rarely speaks up. I find this description of her much more to my liking:
Comment by Mark IV — June 1, 2007 @ 11:23 am
ECS - I read the article you linked to and re-read the relevant sections of Gonzales v. Carhart, and while I can see the author’s objection–that the majority opinion focuses on state interest in protecting human life and doesn’t address the woman’s need for autonomy to maintain a legal status equal with men–I think that is faulting the majority for failing to conclude that that a woman’s right to abortion supercedes all other state interests and calling it paternalism. Perhaps it is paternalism. But I don’t agree that Justice Kennedy’s use of the word “mother” to describe women who ultimately elect to abort and references to the bond between a mother and child “reflect the view that women should be protected against abortion because it goes against their maternal nature.” I find it somewhat dehumanizes a woman and oversimplifies the abortion issue if you make it your assumption that abortion is inherently a psychologically neutral event, and any “peril” or trauma that a woman *might* experience is born solely of her own psychological weakness. I found nothing in Justice Kennedy’s language that suggested that all, or even most, women must or should feel psychological trauma because having an abortion goes against their maternal nature. Many women who have abortions and don’t regret their decision nonetheless think of themselves as mothers and feel a bond with the children they chose not to carry to term. Some find that fact creepy, but it’s a fact all the same. It’s also a fact that some women are just fine after an abortion. I don’t think there are reliable statistics to prove that “most” women have one kind of an experience or another.
Quimby - I want to say that I regret making a mountain out of a molehill. Some other day of the week I probably would have let your facetious comment go, since I know it’s just your way to make these sarcastic remarks out of frustration. It just so happened that at the time I was also frustrated because I think these conversations fall into a predictable pattern of impugning motives rather than confronting the actual reasoning behind an argument. If you can think about how frustrating it is for you to be among people who assume that if you hold a particular position you must not be a “good church member” or whatever, maybe you can imagine how frustrating it is to be among people who assume that if you hold a particular position, it must be because you lack compassion or a sense of justice–that it’s your character, not your reasoning, that’s flawed. That’s why people of opposing views talk past each other instead of trying to understand each other. So I apologize for my ill-considered rebuttal. I will go back to rolling my eyes in private. P.S. That was a joke.
Comment by madhousewife — June 1, 2007 @ 1:23 pm
madhousewife,
This wasn’t the emphasis of the article, but if that’s what you took from it, then I disagree. There should be reasonable limits on abortion, but banning a necessary medical procedure while calling into question a woman’s ability to give informed consent is not reasonable.
Abortion is certainly not a psychologically neutral event. Neither is carrying and giving birth to an unwanted child. The Casey opinion (referenced in that article) provided a balanced discussion of the emotional effects of the decision to abort or to carry a child to term. Justice Kennedy, however, chooses not to discuss the negative impact of pregnancy and childbirth upon the woman herself and then takes away the opportunity for a woman to choose a medical procedure that may be necessary to preserve her health.
This is an interesting statement - do you have a cite for this? Or is it your personal observation/opinion?
Comment by ECS — June 1, 2007 @ 2:11 pm
By the way, madhousewife, I appreciate your comments on this.
Comment by ECS — June 1, 2007 @ 2:24 pm
As other posters have pointed out, there were clearly other ways the law could have been interpreted. Yes, my initial comment was made out of frustration; and that frustration stands. Had the balance of power in the court been stacked towards the left, I do not doubt the result would have been different.
I think the decision shows a great deal of sexism. However, I do not necessarily believe that the justices themselves are sexist, or that sexism is the primary motive of the decision. It should come as no surprise to anyone that I don’t know any of the Supreme Court justices. I am really in no position to say whether or not any of them are sexist. (Including Alito. Though I still think he’s a dork.)
Republicans are known for their cautious approach towards business. Business must be protected at all costs, even if it’s detrimental to the people, even if it’s very short-sighted to do so. (No Kyoto Treaty because it might hurt business, never mind that not enforcing carbon emission levels will practically guarantee that any future business is severely hurt.) If we’re examining motives, I think that Republican desire to protect business at all costs, even if it’s detrimental to the people, is really what we’re seeing in this decision.
Okay, now you can attack me for my bleeding-heart liberalism that says people are more important than business.
Comment by Quimby — June 1, 2007 @ 5:02 pm
ECS,
I was trying to focus on the fear-and-bigotry angle. I certainly appreciate the arguments that she (or they) were making about the merits (or demerits) of the decision. I just don’t agree that it reflects an outmoded view of women that devalues their competence or denies the non-maternal facets of their natures. And your point about childbirth not being a psychologically neutral event is well taken. I think the number of people who would characterize either event as psychologically neutral is infinitesimally small. It’s not that I don’t think there’s anything wrong with Justice Kennedy’s opinion or the way he wrote it. I just don’t think it stems from a disregard for women and their well-being.
I don’t mean to make this a conversation about abortion when it’s supposed to be about Samuel Alito’s dorkiness. Sorry.
Since you asked, though, there was an article in Newsweek several months ago about how abortion clinics are responding to women’s needs to grieve for their abortions. In some cases of late-term abortions, they will wrap the fetus in a blanket and allow the woman to hold it. I must say, I found that particular anecdote disturbing but also thought-provoking. Also, I recently read a particularly heartbreaking article about “selective reduction” abortions in Washington Post magazine. I could also cite a Gwendolyn Brooks poem, but that wouldn’t pass journalistic muster, probably. Anyway, I think both articles illustrate the fact that abortion is a complicated moral issue that deserves complex legislative treatment, not either/or extremism.
Comment by madhousewife — June 1, 2007 @ 5:51 pm
Eh, I’m not in the mood today.
Comment by madhousewife — June 1, 2007 @ 5:54 pm
ECS #9 and subsequent,
In fairness, men often fail to be fully aware of women’s viewpoints, issues and (may I say it?) feelings. Then again, I see women frequently failing to understand and/or be sympathetic to men’s issues. The fact seems to be that both genders have to work, and be broad minded, to appreciate at all the issues of the other gender. So I say, look to yourself and your own bias and blind spots. I try to find/assess my own. I understand why you would want to have a more representative representation of women on the Supreme Court, and a woman as President now and then. I would like to see my children, especially my sons, have a fairer balance of male teachers in schools. And when I am in the hospital, I truely appreciate having a male nurse, on the rare occasion that I’m so lucky.
PS: It’s a good thing we need each other, as we do, or we might not get along well enough to prolong the species.
Comment by Trueheart — June 4, 2007 @ 6:27 am