But This Remedy is Not Always Available or Reliable

by Judith Schaeffer, Vice President, Constitutional Accountability Center

While most Americans tend to think of the Supreme Court as the final arbiter of what the law is, in fact, under our constitutional system of separation of powers and checks and balances, there are circumstances in which Congress and the President can act to overturn a Supreme Court ruling. They are expected to do just that today when President Obama signs into law the Lilly Ledbetter Fair Pay Act of 2009. This new law effectively overturns the Supreme Court’s infamous 2007 ruling against Ms. Ledbetter in Ledbetter v. Goodyear Tire & Rubber Co., a ruling that made it much harder for workers who have been victims of unlawful pay discrimination to obtain compensation for that discrimination.

At issue in the Ledbetter case was the proper interpretation of certain provisions of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination on the basis of sex, race, and similarly irrelevant factors, and which generally gives employees only 180 days to file a complaint if they believe they have been discriminated against. Unbeknownst to Ms. Ledbetter, for much of her long career at Goodyear she had been paid less than male colleagues doing the same work, all because of sex-based discriminatory compensation decisions. After she learned about the discrimination from an anonymous tip, Ms. Ledbetter sued, and a jury ruled in her favor, awarding her several million dollars.

But the Supreme Court, in a sharply divided and much-criticized 5-4 ruling, took that verdict away, holding that Ms. Ledbetter had sued too late. The Court’s opinion, written by Justice Alito, rejected the longstanding notion that each discriminatory paycheck given to Ms. Ledbetter by Goodyear started the time to sue running again, and held that Ms. Ledbetter should have sued when the discriminatory compensation decisions were first made. In a harsh dissent, Justice Ginsburg pointed out that in many workplaces, employees have no idea what their co-workers are earning, and it may only be over time that a worker learns she has been the victim of unlawful pay discrimination.

Because the Court’s ruling concerned the interpretation of a law passed by Congress, Congress had the power to pass a new law essentially correcting the Court’s misinterpretation of the original statute and effectively overturning the decision. Shortly after the ruling in Ledbetter, legislation was introduced to do just that, but it did not get through Congress, and President Bush promised to veto it even if it did. Then-presidential candidate Barack Obama, on the other hand, pledged that if elected, enactment of the Fair Pay Act would be a priority of his Administration.

Today, with the help of the new Congress, which quickly passed the Fair Pay Act this month, President Obama is scheduled to make good on that pledge. With Lilly Ledbetter looking on, President Obama will sign into the law the legislation named in her honor, which clarifies that an unlawful discriminatory act takes place each time a worker is paid based on a discriminatory compensation decision.

While Americans should be heartened by this example of checks and balances at work, it is still important to remember that Congress does not always have the power to correct the Court by legislation (for example, when a ruling is based on the Constitution). Moreover, as the Ledbetter example shows, the reality of Washington, D.C. is that Congress and/or the President may have no desire or political will to correct the Court even when the power to do so exists.

For these reasons, among many others, the Supreme Court remains a powerful branch of our government, vital to protecting the constitutional and statutory rights and interests of all Americans. And Americans, therefore, must continue to care about who is nominated by the President, and confirmed by the Senate, to fill vacancies on the High Court.