Update posted below w/link to NRO's Bench Memos.
"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.
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.
our view, the court does not comprehend, or is indifferent to, the
insidious way in which women can be victims of pay discrimination," she
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:
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
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
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
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:
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
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
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."
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.