Linda Greenhouse, the liberal Supreme Court reporter for the New York Times, thinks she has the inside story as to why a recent Supreme Court decision came out the way it did: a female Supreme Court justice was replaced by a male. (She's entirely wrong.)
On Tuesday, the Supreme Court voted 5-to-4 to enforce the 180-day statute of limitations in Title VII of the Civil Rights Act. In doing so, it dismissed an untimely pay discrimination claim by Lilly Ledbetter against Goodyear Tire & Rubber Co. under Title VII, suggesting that she should have brought her suit instead under the Equal Pay Act, which has a longer statute of limitations. Justice Ruth Bader Ginsburg, in dissent, suggested that the five justices in the majority (who happened to be male) were "indifferent" to the "way in which women can be victims of pay discrimination."
Greenhouse, who has a bad memory, suggests that the close 5-to-4 ruling would have been decided the other way if Justice Sandra Day O'Connor, a woman, were still on the court, and had not been replaced by a man, Justice Samuel Alito. Justice O'Connor, she said, "would almost certainly have voted the other way."
But Justice O'Connor rigorously enforced statutes of limitations, and she wasn't the swing-vote on the Supreme Court in statute of limitations cases. A man, Justice Clarence Thomas, was. In a 2002 case, Justice Thomas joined the court's four liberal justices in weakening the statute of limitations in discriminatory harassment cases in National R.R. Passenger Corp. v. Morgan. It was Justice O'Connor who wrote the dissent against that ruling, which was also decided by a 5-to-4 margin.
Greenhouse's story on the Ledbetter decision is little more than an editorial in favor of the dissent, as the Wall Street Journal's OpinionJournal points out.
That's unfortunate, because the New York Times is a very influential newspaper, given its large national circulation. (Indeed, Greenhouse herself is, mystifyingly, influential: the phrase "the Greenhouse Effect" was coined by senior federal judge Laurence Silberman to describe the phenomenon of vain, once-conservative Supreme Court justices writing liberal decisions in order to get favorable coverage from Greenhouse and the Times).
Why the Supreme Court was right to enforce the law's statute of limitations in Ledbetter v. Goodyear, and why the decision does not gut legal protections against discrimination, is explained in my post yesterday.