Orin Kerr at  Volokh criticizes Supreme Court Justice Ruth Bader Ginsburg’s express purpose in dissenting in Ledbetter v. Goodyear Tire & Rubber.  According to Kerr, Ginsburg “wrote a legal opinion at least in significant part to push a different branch of government to enact a law closer to her personal policy preferences.”

It seems to me that a Justice’s job in a statutory case is to say what the statute means and no more. If you dissent, then dissent. But trying to push Congress to enact a law that you like better isn’t part of the job description.

Orin tries to make his point using the goose/gander scenario; If it’s wrong for the Legislative branch to try to tell the Judicial branch what to do, then is it not equally wrong for a Supreme Court Justice to use a dissenting opinion to “influence the outcomes of future legislation?” 

The problem with this approach, as pointed out by several commenters, is that the Legislative and Judicial branches of government are not equivalents.  Justice Ginsburg explains that the purpose of her dissent was “to attract immediate public attention and to propel legislative change.” This purpose is the problem, according to Orin, since the it is not the province of the court to propel legislative change.

But while the words come from Justice Ginsburg’s speech, they are taken out of context.

The Court’s ruling, I observed for the dissenters, ignored real-world employment practices that Title VII was meant to govern: “Sue early on,” the majority counseled, when it is uncertain whether discrimination accounts for the pay disparity you are beginning to experience, and when you may not know that men are receiving more for the same work. (Of course, you will likely lose such a less-than-fully baked case.) If you sue only when the pay disparity becomes steady and large enough to enable you to mount a winnable case, you will be cut off at the court’s threshold for suing too late. That situation, I urged, could not be what Congress intended when, in Title VII, it outlawed discrimination based on race, color, religion, sex, or national origin in our Nation’s workplaces.

In other words, it was Justice Ginsburg’s belief that the application of Title VII as held by the majority undermined the legislative purpose of the law.  While Justice Ginsburg disagreed with the majority’s interpretation of the 180 day filing requirement, her purpose was to make it patent to Congress that if the majority’s holding was different than Congress’ intent, it was now up to Congress to fix the law.

So what’s wrong with doing this?  There is a monumental difference between individual legislators using the media to castigate the Supreme Court, or its individual justices, by demeaning them personally for their decisions.  They are called “activists”, in a way that makes it sounds one step below “liberals”, a word used to describe a person hellbent on destroying the true American way of life.  These are direct attacks by members of one branch of government on another.

In the case of the Supreme Court, attacks are particularly troubling.  SCOTUS commands no armies.  It’s only weapon is integrity, the willingness of the American people to accept the premise that the Supreme Court is the final arbiter of constitutionality, or right and wrong.  We need not agree with its decision, only accept it. 

On the flip side, a dissenting opinion carries no force beyond its persuasiveness.  Justice Ginsburg can only point out what she believes to be wrong in the interpretation or application of a law.  She can’t make any Congressman or Senator bend to her will.  A dissenting justice is powerless, except in the arena of ideas.

From a functional perspective (and we are all about pragmatics here), if Justice Ginsburg is correct and the Ledbetter decision does not reflect Congressional intent, is she not also correct to alert Congress that it must fix the statute to perform the function Congress intended it to perform?  When enacted, words are chosen to effectuate certain purposes.  Sometimes, given the variety of applications, unintended consequences and changes in society over time, those words no longer serve their intended purpose. 

When the Supreme Court applies the usual tools of statutory construction, things don’t always work out as planned.  Unfortunately for the individual litigant in the losing test case, she gets screwed.  Yet another example of how the system is less than perfect.  But the point is not to perpetuate the unintended consequences, but fix them if they do not reflect the purpose of the law.  It seems to me that Justice Ginsburg has used her dissent to focus attention on what she believes to be an error in the application of the law that Congress may (or may not) want to correct.  It’s not like she wrote that legislators dress funny, smell bad or are “activists”.

What’s wrong with that?