I've taken issue with plenty of things Ted Kennedy has done in the past, most recently his suggested reforms to the judicial confirmation system. My response [$] to his proposals was essentially that he ought to go back to Civics 101 and learn the difference between law and politics, and between the respective powers of the judicial and legislative branches.
Apparently, someone on Kennedy's staff has done just that because this week the good senator introduced two bills designed essentially to remedy what he sees as Supreme Court error in the field of employment discrimination. This action naturally caught the attention of the New York Times editorial page:
One of the most troubling rulings was in the case of Lilly Ledbetter, a supervisor at a Goodyear Tire and Rubber Company plant who was paid less than her male colleagues after she was given smaller raises over several years. The court’s conservative majority ruled that Ms. Ledbetter had not met the 180-day deadline to file her complaint. It insisted that the 180 days ran from the day the company had made the original decision to give her a smaller raise than the men.
The Fair Pay Restoration Act, one of Senator Kennedy’s bills, would undo the injustice of the Ledbetter decision by establishing that the 180-day deadline runs from when a worker receives the unequal pay, not when the employer decided to discriminate. It would make clear that each discriminatory paycheck restarts the clock.
Kennedy’s other bill, the Civil Rights Act of 2008, would reverse more bad decisions. One of these is a 2001 ruling that says that people who are discriminated against in programs using federal funds can sue only for intentional discrimination, not for actions that have a discriminatory effect.
Kennedy, wittingly or not, has just demonstrated how our constitutional system of checks and balances and separation of powers should work — as well as illustrating the difference between law and politics.
The Fair Pay Restoration Act is Congress’s proper (legislative) response to the Supreme Court’s proper (judicial) decision in the Ledbetter case. The Court had no choice but to rule the way it did under the relevant (and constitutionally valid) law, even if the result was arguably unjust. The correct response is, as has happened here, to propose a bill changing that law, not to urge judges to ignore it and rule as they see fit.
Similarly, the Civil Rights Act of 2008 is a legislative attempt to correct a perceived failing in employment discrimination law as correctly interpreted by the judiciary. The wisdom of allowing people to sue for actions that have “discriminatory effect” without an intent to discriminate — whatever that means and however it can be established for legal purposes — is debatable, but it is only through congressional action (with the president’s assent or properly overridden veto) that the law can change.
The bottom line is that judges — including the highest court in the land — have the power only to interpret the law (constitutional and otherwise), not rewrite it or otherwise legislate from the bench. I'm glad that Kennedy has thus decided, for this week at least, to use his lawful authority to legislate from the legislature — instead of merely railing against a judiciary that does nothing more nor less than its job.