The Nine [183]
As a minor consolation, the abortion case gave Ginsburg the chance to float her own distinctive view of the constitutional basis for abortion rights. Even before she became a judge, Ginsburg had not cared for Blackmun’s privacy rationale in Roe v. Wade. Rather, as she wrote in her dissent in Gonzales v. Carhart, “legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature.” Ginsburg believed abortion rights protected women’s equality, not their privacy, and she persuaded all of her fellow dissenters—Stevens, Souter, and Breyer—to sign on with her. But as the spring wore on, these four justices increasingly were speaking only to each other.
For years, Ginsburg had prided herself on her restraint in writing dissents, citing O’Connor and Souter as her fellow exemplars of politesse. In speeches and in private, she said she thought Scalia-style posturing and invective distracted the Court from its work. But on April 18, she read her fiery dissent in the abortion case from the bench, and on May 29, she denounced her colleagues in Ledbetter v. Goodyear Tire & Rubber Company, a case that seemed almost designed to infuriate her. While still a law school professor, Ginsburg had represented women in equal pay cases under Title VII, which bans discrimination in the workplace. That law requires individuals to file their cases within 180 days of “the alleged unlawful employment practice.” For years, the courts said that if a woman sued within 180 days of her last offending paycheck, she received compensation for the entire period she had suffered from discrimination. But in Ledbetter, the five conservatives ruled that plaintiffs could be paid for discrimination only within the six-month statute of limitations.
“The Court does not comprehend, or is indifferent to, the insidious way in which women can be the victims of pay discrimination,” she said. As Ginsburg knew better than anyone who had ever served on the Court, the majority’s ruling ignored the realities of actual litigation. She said that women can’t possibly know within 180 days that they are being paid less than men. “Ledbetter’s initial readiness to give her employer the benefit of the doubt should not preclude her from later seeking redress for the continuing payment to her of a salary depressed because of her sex,” Ginsburg continued. She concluded by imploring Congress to amend Title VII to make clear that the majority’s interpretation was wrong. Her current colleagues, Ginsburg suggested, were beyond help.
In his two years as chief, Roberts made his public goals clear. Decide more cases; achieve more unanimity; write narrower opinions—judicial minimalism. In 2007, Roberts failed on each one. Only 25 percent of the decisions were unanimous, down from 45 percent in his first year. (About a third of the opinions were unanimous in the Rehnquist years.) Even more striking, 33 percent of the cases in 2006 and 2007 were decided by votes of 5–4—a level of division unprecedented in the Court’s recent history.
So was Roberts’s second year a failure? To the contrary. The new chief’s stated goals dealt with procedural niceties. The president who nominated him (and those who pushed Bush to appoint him) cared above all about the substance