Arizona Eagletarian

Arizona Eagletarian

Tuesday, May 6, 2014

Justice Ginsberg reflects on her time in the Supreme Court; Wake's Harris dissent

The occasion was delivery of the annual John P. Frank memorial lecture, sponsored by Arizona State University's School of Social Transformation. The event was really a conversation with Justice Ruth Bader Ginsberg, along with her friend, retired Justice Sandra Day O'Connor, moderated by Senior Ninth Circuit Court of Appeals Judge Mary Schroeder. It was a nearly full house at Gammage Auditorium.

For me, the most salient point came when Ginsberg discussed some of her most memorable dissenting opinions. She cited a dissenting opinion by Justices Brandeis and Holmes in 1919 that eventually inspired change in legal treatment of Free Speech in America. That prefaced mention of her dissent in Ledbetter v Goodyear Tire and Rubber Co (2007).

Lilly Ledbetter had been an area manager for Goodyear for a long time when she learned that others with far less time in the same position were being paid substantially more than she was. Ledbetter sued under Title VII of the Civil Rights Act of 1964. Because the unlawful employment practice started so long before she sued, the majority opinion held that she was barred by statute of limitations language in Title VII from making a claim. Because of Ginsberg's dissenting opinion, Congress passed the Lilly Ledbetter Fair Pay Act of 2009. (Arizona's 2 GOP senators (Kyl/McCain) voted NAY; its 8 Representatives voted along party lines, 5 AYE/3 NAY; President Obama signed the bill into law January 29, 2009)
A bill to amend title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, and to modify the operation of the Americans with Disabilities Act of 1990 and the Rehabilitation Act of 1973, to clarify that a discriminatory compensation decision or other practice that is unlawful under such Acts occurs each time compensation is paid pursuant to the discriminatory compensation decision or other practice, and for other purposes.(emphasis mine)
Which now brings me to the District Court decision in Harris v AIRC. Ginsberg's comments shed important light on the 2-1 decision denying the Tea people a victory over Independent Redistricting. Thus far, I've read the 55-page per curium opinion ostensibly authored by Circuit Court Judge Clifton and the 16-page concurring opinion written by Judge Silver. Because Judge Wake's dissenting opinion is not of immediate consequence, I left it to last and will read it in the next few days.

But referenced in Clifton's and Silver's opinions are sharp rebukes to Wake's. For example, from my previous post, on the per curium opinion, Footnote 11 reads,
Similarly, the dissenting opinion contends, at 20, that the Department of Justice “has never required unequal population for preclearance in the 48 years of administering Section 5.” That assertion is not proven. More importantly, it is an irrelevant straw man. For preclearance purposes, any variation in population is a means, not an end. There would never be reason for the Department to “require[] unequal population.” That is not the Department’s goal. The question is whether a state might improve its chances of obtaining preclearance by presenting a plan that includes minor population variations. The evidence presented to us supported that proposition, and neither plaintiffs nor the dissenting opinion deny that fact. (emphasis mine)
That would seem to nullify Wake's opinion in the eyes of the Supreme Court, generally speaking. However, we know the current SCOTUS leans strongly to the right, as apparently does Wake. Yet, for SCOTUS, in this case, making a partisan ruling in favor of the plaintiffs will, in fact, cut both ways. Politics is like a pendulum. Dominance the GOP has enjoyed over lawmaking in Arizona for the last couple of decades is likely to swing back the toward the left.

BUT, if Wake wasn't writing his opinion for the court but to reignite the political firestorm, hoping to undermine Independent Redistricting for the 2021 cycle, the straw man fallacy may simply not have been a particular concern for him.

Lord knows, Wes Harris' tirades during public comments in AIRC hearings often held little to no relation to logic and rationality. Oh, and apparently the Arizona Republic's Bob Robb doesn't care about the fallacious nature of Wake's arguments either. Maybe Mr. Robb will be taken to school by our good friend John Kavanagh, who considers himself an adamant opponent of fallacies.

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