Posted by
Always To The Right on Wednesday, May 30, 2007 7:48:59 PM
From opinionjournal.com about the SCOTUS case about employment discrimination
involving Lilly Ledbetter, the point is how a New York Times reporter writes
things up.
A couple of things struck us about the way Linda Greenhouse of the New
York Times covered this decision. First is the insidious blurring of
the legislative and judicial functions:
*** QUOTE ***
Title VII's prohibition of workplace discrimination applies not just to
pay but also to specific actions like refusal to hire or promote,
denial of a desired transfer and dismissal. Justice Ginsburg argued in her
dissenting opinion that while these "singular discrete acts" are readily
apparent to an employee who can then make a timely complaint, pay
discrimination often presents a more ambiguous picture. She said the court
should treat a pay claim as it treated a claim for a "hostile work
environment" in a 2002 decision, permitting a charge to be filed "based on
the cumulative effect of individual acts."
In response, Justice Alito dismissed this as a "policy argument" with
"no support in the statute." . . .
In her opinion, Justice Ginsburg invited Congress to overturn the
decision, as it did 15 years ago with a series of Supreme Court rulings on
civil rights.
*** END QUOTE ***
"Overturn" is Greenhouse's word, not Ginsburg's, and Greenhouse should
know better. Higher courts can overturn the decisions of lower courts,
and courts can overturn their own precedents. But the Supreme Court is
the final word on the interpretation of federal law. What Ginsburg
actually urged Congress to do is enact a new law.
The distinction between making and interpreting laws is fundamental to
America's system of separation of powers. It is a distinction that has
been blurred in recent decades by a Supreme Court determined to act as
a sort of hyperlegislature--most notably in the area of abortion, where
the court has conjured literally from nothing (i.e., from a
constitution that is silent on the topic) a nearly unlimited right to abort a
pregnancy, coupled with an elaborate scheme for determining what
regulations on abortion pose an "undue burden."
The liberal left in America--of which Greenhouse is a part
http://www.opinionjournal.com/best/?id=110008703#press --isn't much
interested in the separation of powers; by and large it is concerned only
with outcomes: Abortion on demand, by any means necessary! Greenhouse's
reference to Congress "overturning" a Supreme Court decision--as if the
legislature were an ultrasupreme court--shows how deeply internalized
this unconcern for the legislative-judicial distinction has become.
This passage from the Greenhouse piece, meanwhile, is just funny:
*** QUOTE ***
As with an abortion ruling last month, this decision showed the impact
of Justice Alito's presence on the court. Justice Sandra Day O'Connor,
whom he succeeded, would almost certainly have voted the other way,
bringing the opposite outcome.
*** END QUOTE ***
Really? Wouldn't Justice O'Connor have carefully weighed the arguments
on both sides and come to a conclusion on the merits? Is it really
Greenhouse's view that O'Connor would adhere to some sort of party line
instead?