Recently, the Supreme Court ruled that a female employee who sued for what seemed to be obvious discrimination in her wages could not bring suit because she took longer than the statutory 180 days to bring the complaint. In her defense, she did not know of the discrimination that took place over the course of 20 or so years until late in the game. Predictably, women's rights groups cried foul saying the Court was stripping protections from women and was enshrining the wage gap. Was the decision misogyny at its worst? Hardly.
The law, as passed by Congress, required that complaints be filed with 180 days of the discriminatory act regardless of when it is discovered. Common sense dictates, certainly in the case of wages (which are often held in confidence), that sometimes it takes more than 180 days to discover an act of discrimination. The law as passed by Congress certainly has its flaws. Even the Bush Administration (which argued in favor of the woman's position) sees the flaws and argued against them.
That said, the argument of the lawyers and the woman's groups was that what the letter of the law says does not matter. If the law is deficient, the Court should simply ignore the law and impose a fair solution. It doesn't matter what the law is; what matters is what the law should be. A fair question would be why such groups believe a Congress or legislature is even necessary or desired.
There are several dangers with this position. First, it attempts to insulate and elevate the judiciary above and beyond the reach of the principle of checks and balances. This was most clearly seen in the case of Terri Schiavo, regardless of where you stood in the case. The legislature and executive at both the state and federal level attempted to check the judiciary in that case, and the judiciary told them to go to hell.
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Article comments
— go to most recent comments1 - Clavos
Dickens said it best, in The Pickwick Papers:
"If the law supposes that," said Mr. Bumble..."the law is a ass, a idiot."
2 - Dr Dreadful
"Typically, judicial activism is a left-wing activity."
Now there's a subjective statement if ever I saw one. If a judgment favors a left-wing point of view, it's "judicial activism". If it favors conservatives, it's "upholding the intent of the law".
Hmm..
3 - Dr Dreadful
Clav, your quote from Mr Bumble is actually from Oliver Twist. Bumble was a bully, a hypocrite, a gold-digger and a thief and an overall not very nice guy. The law in his case gave him exactly what he deserved and he didn't like it.
Mr Pickwick, in contrast, did fall foul of the law at its most asinine, when he got sent to debtors' prison for refusing to pay compensation for a spurious allegation of breach of promise.
4 - Clavos
DD,
You are, of course, completely correct. I plead lateness of the hour...or something.
5 - bliffle
Bambi, as usual, offers a rich supply of bogus ideas and assertions ripe for refutation, but I'll restrict myself to the single notion that occured to me upon first hearing of this decision. That is, the provision of a 180 day claim requirement. 180 days? Where does that come from? Why not a similar 180 day claim period for other legal claims? Will the IRS forgive my back taxes after 180 days? Of course not. This anti-discrimination law is simply discriminatory: it places a burden on the petitioner that has no corresponding burden for the other side.
It is a violation of the Equal Protection provision of the constitution. People offended in this way simply do not have the same protection under the law as other petitioners and are put at a relative disadvantage to the offender.
6 - Nancy
Blif is correct; there are no corresponding statutory periods for any other kind of discrimination. Therefore, it applies to only one class of people - women. The same period was not applied to men. Therefore it is discriminatory.
7 - LawStudent
Dr Dreadful...
You've got it somewhat backwards...
judicial activism is a left-wing activity, but not every left-wing position is judicial activism.
In other words, liberal judges tend to grant themselves more power to stretch and "interpret" legislation while conservative judges feel more restricted by the text of the statute. (For some reason there is that correlation, I'm not sure why. It probably has something to do with the personalities that make people liberals and conservatives in the first place.) There are however many liberal positions that don't involve interpreting or defining statutes, or creating new law and consequently, have nothing to do with judicial activism.
On the merits of this case, I think the Court got this one wrong. First, every paycheck is an act of discrimination and the action was commenced within 180 days of the most recent paycheck. Also, even by conservative standards, interpreting the 180 day limitation to apply only to "open and obvious" discrimination would not be too much of a stretch. Third, a permissive interpretation simply makes logical sense and is probably more in accord with the intent of the legislature that enacted the statute.
8 - Michael J. West
If a judgment favors a left-wing point of view, it's "judicial activism". If it favors conservatives, it's "upholding the intent of the law".
Quoted for the God's honest truth.
9 - Dr Dreadful
Law Student, you missed my point. Right-wingers tend to view "activism" - of any kind - as a liberal tactic. Consequently, the charge of "judicial activism" often springs from the lips of conservatives as a slur against any court decision they don't like.
The best contemporary examples are those involving church-state separation issues, where rulings prohibiting the teaching of creationism in public school science classes, or the displaying of the Ten Commandments in federal courthouses - clear violations of the First Amendment - are condemned as "judicial activism" by their opponents. You don't hear the same people complaining when courts uphold laws restricting the right of marriage to heterosexual couples - although there is a strong case to argue that such laws violate the Constitution's equal protection provisions.
As I said before, the term is subjective. Plessy v Ferguson and Brown v Board of Education - two decisions which are essentially a complete 180 from each other - were both criticized in such terms by those who felt that the court's decision didn't adhere to the letter or spirit of the law - or to their own beliefs and prejudices.
10 - Big Dog
My understanding is she waited more than 180 days after she discovered the discrimination. I agree that this is not a standard I have seen applied to other cases but if the law states this is the standard then the court probably upheld the law as written. She should refile the suit and argue that her rights to equal protection were violated. The fact that she did not know is not a defense. John is right, they upheld the law and if it is wrong it is up to the legislative branch to fix it. The judiciary can only interpret.
I wanted to pipe in on #9 by DD. You are absolutely wrong when you indicate these acts violate the First Amendment. First of all the Constitution does not contain the words separation of Church and State. Secondly the only two items dealing with religion are that Congress will make no law establishing religion nor will the free exercise of religion be prohibited. Neither statement bars prayers, displays of religious items or anything else.
The First Amendment gives us freedom of religion not from it. If having the Ten Commandments in federal court houses why did our nation build a supreme court that has doors with the Ten Commandments on them? It is OK to argue judicial activism but you should know the Constitution if you are going to argue it and not rely on the ACLU talking points.
11 - Dr Dreadful
Big Dog:
The Constitution does not contain the words separation of Church and State. I am aware that the Constitution does not contain that phrase. However, you know perfectly well that "an establishment of religion" means any kind of governmental endorsement of a particular religious belief. What else would you call the teaching of creationism in public schools?
Congress will make no law establishing religion nor will the free exercise of religion be prohibited. Neither statement bars prayers, displays of religious items or anything else. It's fine if a judge wants to have the Ten Commandments on the wall of his own private office. I don't even have a problem with a court offering up a prayer before the start of the day's business, so long as it's non-denominational and no-one objects or is forced to take part. However, it's quite another matter when the Commandments are displayed in, on or around the public areas of a courthouse as if they were the law of the land.
The First Amendment gives us freedom of religion not from it. I agree with you that the First Amendment protects the expression of religion. However, it is clear that if you want to worship, you will do it on your own time and not expect governmental sanction.
...why did our nation build a supreme court that has doors with the Ten Commandments on them? Your rhetoric is misleading. The several representations of the Commandments at the Supreme Court are part of a larger artwork on the theme of lawgiving through the ages. Also represented (besides Moses) are such other notable lawgivers as Hammurabi, Muhammad, King John of England, Napoleon and Blackstone. Furthermore, nowhere in the building are the Commandments written in full, or displayed in such a way as to imply their promotion by the government.
12 - LawStudent
Agreed that right-wingers call every liberal decision "judicial activism" but around law school the term is reserved, and properly so, for instances where the court assumes too much of a legislative role. Courts have always made law by themselves, and society accepts that. The point where they breach the boundary and assume a legislative function is not clearly defined, and is a matter of degree.
I agree with the previous post that the Constitution does not require monuments to the ten commandments to be removed from federal courthoses. Nevertheless, the Ten Commandments case isn't judicial activism because it is the Court's job, not the legislature, to interpret the Constitution. The decision is, however, wrong.
I disagree with a previous post that stated that 180 day statute of limitation violates the equal protection clause, because if a man were discriminated against based on sex the same 180 day limitation would apply.
13 - Dr Dreadful
LawStudent, please substantiate your assertion that the decision is wrong.
14 - Lee Richards
#10
"The 1st amendment gives us freedom of religion not from it".
Absolutely incorrect. It guarantees freedom from religion for those who do not want to practice or follow any belief system or dogma. There would be no freedom "of" religion otherwise.
15 - bliffle
Ten Commandments? Which ten? If you go thru the bible and tote them up you get 38. And we only legislate 2 of them: don't steal and don't kill. But then, any society would legislate those, without any religious prodding.
16 - STM
Doc, a tip: while I agree with you in regard to the separation of church and state and its function as a foundation of the US system of government, it's a mistake to argue about the Constitution with your new-found Yankee friends ... everyone in America has their own beliefs and interpretations of it, often misguided, some based on what was taught in grade-school history classes (as in 1st amendment rights regarding free speech and the widespread belief that it is absolute). Not referring to you here, BTW, Big Dog.
For all the good oil on Constitutional law and how it's been interpreted over the years, just go to the Supreme Court's rulings (and the rulings of other courts, or decisions of the legislature for that matter). It's OK for everyone to have an interpretation or an opinion (first amendment rights, again!), but the only rulings that count are those delivered by the lawmakers. The rest is thus just hot air and general windbaggery.
So here's a bit of mine: I reckon the 9th amendment is the best one of all ... it's a gentle instruction, if you like, from the founding fathers as to how the constitution should and (most importantly) shouldn't be interpreted, and might dovetail quite nicely with the 14th amendment in regard to so-called judicial activism and how that might be perceived depending on what side of the political fence you stand. With its warning that the Constition shouldn't be regarded as the whole of the law, it's also a little piece of simple legislative genius that enables the functioning of an independent judiciary.
However, in all the fuss about the rest, both the 9th amendment and the 14th amendment, each arrived at through genuine democratic process, often seem to be conveniently forgotten.
17 - Dr Dreadful
Ten Commandments? Which ten?
Exodus 20. (And Deuteronomy 5, which is almost word for word the same. Apparently God felt the need to pass them down twice - perhaps His people weren't listening the first time.) The majority of people don't even know there are any others, and aren't really missing out since they're largely concerned with things like ritual cleanliness, worship and sacrifice, which most people don't bother mucking about with these days.
When I was at elementary school in Britain, where there is no separation of church and state (in fact, religious education is the only compulsory subject!), we had to learn the Commandments and the Lord's Prayer by rote. All the more surprising then that we're now such a bunch of heathens.
18 - STM
Ah, but what about the later commandment ... that of Christ, contained in the new Testament.
Very simple stuff: A new commandment I give unto you, That ye love one another; as I have loved you, that ye also love one another. By this shall all men know that ye are my disciples, if ye have love one to another. (John 13:34-35)
In accordance with other teachings of Christ about unconditional love, tolerance, non-judgment, forgiveness and compassion, this sums up the very foundation of Christian belief and worship.
Amazing how despite this, so many people who call themselves Christians have lost sight of what it is all about, and how many still believe in such Old Testament notions as an eye for an eye.
The Church teaches that this is not the case, and also that the teachings of Christ are not open to interpretation.
19 - Dr Dreadful
The "Christians" you are talking about see a major loophole: Christ's other statement that he did not come to abolish a single word of the law - i.e. the Old Testament. Attempts to reconcile this render the teachings very much open to interpretation.
Long and the short of it, you can justify pretty much anything on biblical grounds if your reasoning is bendy enough - which is a very good reason for not allowing the Good Book anywhere near an American courtroom.
20 - STM
We have a couple of terms in Oz for such Christians ... wowsers and God-botherers.
21 - STM
DD: "When I was at elementary school in Britain, where there is no separation of church and state".
Ah, but Doc, you are not quite right ... there absolutely is separation of church and state - under English common law, and therefore under the (constantly evolving) constitution of Britain.
No one can force anyone in Britain to worship or not worship, or tell them how they should or shouldn't worship, or even what to do, think or say generally (within the bounds of the law, even if it is a ass on occasion).
That, dear doctor, is the abiding beauty of the place. Greece is not the birthplace of the modern, liberal democracy as we understand it - Britain is.
22 - Dr Dreadful
So what the hell am I doing in America, again?
;-)
23 - Clavos
"So what the hell am I doing in America, again?"
You like us seppos?
(And yes, I know that's bad grammar! It just sounds too poofy the other way))
24 - STM
But you are all still a pack of bastards :)
25 - STM
America is one of those more-ish places DD, i think. Once you've had some, you must have more. G'day Clav. Good to see you embracing the great Aussie insult (or one of 'em) :) You knew that term, though, did you not, from your days in a certain south-east Asian country??