Don't Blame the Court

Lawyer Andrew Cohen analyzes legal affairs for CBS News and

Forgive me for not jumping on the anti-Supreme Court bandwagon when it comes to Tuesday's big employment discrimination case. Yes, I believe the result in the Ledbetter case is absurd — how in the world can an employee be responsible for suing in a timely manner for discrimination if he or she is unaware of the discrimination? But I do not blame the court's conservative majority for the problem. I blame Congress and the administration-- and you should, too.

The court's majority did not create out of thin air the rules that say you have to sue within 180 days of the initiation of the discrimination in the workplace (whether you know about it or not). The pro-corporation firm of Alito, Roberts, Kennedy, Thomas and Scalia did not go out of its way to stick it to employees for the benefit of employers (although you'd be forgiven for thinking so given their track records in cases like this).

The justices simply followed the fairly clear reading of the federal laws that applied to the case. And the federal law was enacted by Congress and implemented by the White House through the Equal Employment Opportunity Commission. If you want to blame someone or something for poor Ms. Ledbetter's plight, blame the lawmakers and the bureaucrats at the EEOC. Heck, blame the White House itself. But don't blame the justices.

Remember, too, that this case was not a "constitutional" one. In other words, the court had merely been asked to rule upon a statute. So its decision does not set in stone the rules as we all go forward with life. As Justice Ruth Bader Ginsburg sternly reminded everyone when she read her dissent> from the bench, Congress is free to change the rules so that they make sense and afford employees at least a fighting chance to get back at their employers for discriminatory practices. And, indeed, less than a day after the justices rendered their decision congressional Democrats were moving to seek legislation that would make the law here make sense.

This whole episode reminds me of the infamous eminent domain case a few years ago—the one which unfairly made villains out of the justices—Justice David H. Souter in particular. But in the Kelo case, too, the problem was not with the court's interpretation of the state eminent domain law but with the state legislature's drafting and enactment of that pro-development, anti-private property law. Then, as now, the court was merely acknowledging the will of the lawmakers. Then, as now, the lawmakers remain(ed) free to correct their mistakes—their lobbying-induced mistakes, I would argue—and do the right thing. In eminent domain law, several states already have taken positive steps to protect private property rights. We'll see if the same positive trend develops now in the post-Ledbetter world.