"Over Ginsburg's Dissent, Court Limits Bias Suits," blared the May 30 front page headline by the Washington Post Supreme Court reporter Robert Barnes. While the 5-4 ruling in Ledbetter v. Goodyear Tire and Rubber Co.
hinged on a plain and simple application of a 1964 federal law, Barnes
front-loaded his article with the dissent of liberal Associate Justice
Ruth Bader Ginsburg, buried the majority's rationale deep in the
article after pro-Ginsburg feminist talking points, failed to include
comment from Goodyear Tire, and gave readers an unbalanced portrait of
the ruling focused on feminist reaction.
Let's take a look at how Barnes's bias unfolded, starting with the lede and second paragraph:
A Supreme Court once again split by the thinnest of margins ruled yesterday that workers may not sue their employers over unequal pay caused by discrimination alleged to have occurred years earlier.
The court ruled 5 to 4 that Lilly Ledbetter, the lone female supervisor at a tire plant in Gadsden, Ala., did not file her lawsuit against Goodyear Tire and Rubber Co. in the timely manner specified by Title VII of the Civil Rights Act of 1964.
In the first two grafs, Barnes reports the who, what, and when of the ruling. Yet in his following grafs he chose to focus on Ginsburg's sharp-worded dissent, rather than giving readers a glimpse of the majority's reasoning, or fleshing out the facts of the case. Not only that, but Barnes colored his description of Justice Ginsburg's dissent in dramatic language, setting the tone for the rest of his article's focus on feminist ire over the Ledbetter ruling. Portions in bold are my emphasis both here and elsewhere in this post:
The decision moved Justice Ruth Bader Ginsburg to read a dissent from the bench, a usually rare practice that she has now employed twice in the past six weeks to criticize the majority for opinions that she said undermine women's rights.
Speaking for the three other dissenting justices, Ginsburg's voice was as precise and emotionless as if she were reading a banking decision, but the words were stinging.
"In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination," she said.
Wow, sharp words indeed. But at least Barnes followed that up with more reasoning behind her rhetoric, or showed, by contrast, the majority's reasoning, right?
Wrong. Instead, he brought up Ginsburg's dissent in the court's landmark partial birth abortion ruling:
Last month, Ginsburg rebuked the same five-justice majority for upholding the federal Partial Birth Abortion Ban Act and for language in the opinion that she said reflected "ancient notions about women's place in the family and under the Constitution -- ideas that have long since been discredited."
Yesterday she said that "Title VII was meant to govern real-world employment practices, and that world is what the court today ignores." She called for Congress to correct what she sees as the court's mistake.
In a case that Justice Samuel A. Alito Jr. said was easily decided on the statute "as written," her statement from the bench was noteworthy.
Alright. Finally we're getting around to the majority's reasoning, right?
At this point we're already eight paragraphs into the article, but Barnes threw in a few more feminist digs at the conservative Court majority (emphasis mine):
Marcia Greenberger, co-president of the National Women's Law Center, said Ginsburg's attention-getting dissents are a "clarion call to the American people that this slim majority of the court is headed in the wrong direction." She noted Ginsburg's background as a feminist legal activist who helped establish women's legal rights and added: "To see them being dismantled is especially troubling."
Four things are noteworthy here. One, it become clear that Barnes's article is designed to echo and amplify Greenberger's liberal talking point. Two, the feminist, liberal slant of NWLC is not explicitly described by Barnes, although it is reasonably implied by context. Three, Ginsburg's "background as a feminist legal activist" is only now conceded in the ninth paragraph of the story and only then attributed to Greenberger, not stated as a matter of fact. And finally, Barnes has still yet to get a description of the facts of the case or the rationale of the majority.
Barnes did toss conservative-leaning groups a bone in his next
paragraph, but failed to get comment from the winning party in the
lawsuit, Goodyear Tire. He then moved on at last to describe the facts
of the case:
A jury had originally awarded Ledbetter more than $3.5 million because it found "more likely than not" that sex discrimination during her 19-year career led to her being paid substantially less than her male counterparts.
While Greenberger and others said the court's decision in Ledbetter v. Goodyear Tire and Rubber Co. was a "setback for women and a setback for civil rights," business groups applauded the "fair decision" that, in the words of the U.S. Chamber of Commerce, "eliminates a potential wind-fall against employers by employees trying to dredge up stale pay claims."
An appeals court reversed, saying the law requires that a suit be filed within 180 days "after the alleged unlawful employment practice occurred," and Ledbetter could not prove discrimination within that time period.
She had argued that she was discriminated against throughout her career, receiving smaller raises than the men received, and that each paycheck that was less was a new violation.
Alito wrote for the majority that "current effects alone can't breathe life into prior, uncharged discrimination." He was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Antonin Scalia and Clarence Thomas. Thomas is a former chairman of the Equal Employment Opportunity Commission.
At last Barnes finally got to the clincher, the heart and soul of
the majority's rationale. The law was clearly written and must be
clearly and consistently applied:
"We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented . . . within the period prescribed by the statute," Alito said.
Barnes also conceded what may have happened had the Court went Ginsburg's way and ignored the plain language of existing federal law:
Of course Conrad's talking point was placed in paragraph 15 of the 26-paragraph story, and Barnes gave Ginsburg fans plenty of other opportunities in the remaining 11 paragraphs to praise the liberal jurist.
Robin Conrad, executive vice president of the National Chamber Litigation Center, said: "If the court ruled the opposite way, employers could have been hauled into court on decades-old claims of discrimination."
While Barnes failed to find comment from the Goodyear Tire, he did quote Ms. Ledbetter, in addition to Judith L. Lichtman of the National Partnership for Women and Families who praised the dissent as addressing "the real-world consequences of Supreme Court decisions on the lives of women."
Barnes closed his article restating the central theme of his article: Justice Ginsburg is mad as hell as she's not going to take it anymore:
Richard Lazarus, co-director of Georgetown University Law Center's Supreme Court Institute, said that reading a dissent from the bench is significant for a justice. "It's a different order of magnitude of dissent," he said.
Lazarus said Ginsburg's dissents "may be signifying an increasing frustration."
Feel free to describe your "increasing frustration" with the Post's bias in an online chat with Barnes at 1 p.m. today at washingtonpost.com.
Update (15:05 EDT):
Ed Whelan at NRO's "Bench Memos" blog gives an opinion that Barnes readily could have found from any conservative Court watcher, namely that Ginsburg's dissent read more like a political rallying cry than a measured legal argument:
What business is it of Ginsburg’s to invite Congress to legislate on a matter, much less to legislate in a certain way? I suppose that it’s no wonder that a justice who can’t separate judging from politics—and whose decisionmaking routinely indulges and entrenches her own political preferences—would see no reason to refrain from advising Congress how to carry out its legislative function.