Constitutional Law

Celebrate The Ledbetter Act, But Prepare For A Long Fight

by Ian Millhiser, Public Policy Staff Attorney, National Senior Citizens Law Center

On New Year’s Eve in 2007, Bridget Robb awoke from the first of 31 electrical shocks that began near her heart and raced throughout her body.  The shocks, which in the thirty-four year-old mother’s words “felt as if a cannon was being repeatedly shot at my chest,” continued as she raced to the phone and waited for paramedics to arrive.  They continued as she pleaded to a 911 operator “Am I dying?  I'm young. I don't wanna die,” and they continued as her six year-old daughter crouched nearby, hugging her cat and crying out “Mommy’s dying.”  The shocks, she later learned, were caused by a defective medical device implanted to treat her chronic heart condition.

In February 2003, James Lind went to the pharmacy to refill a prescription he relied on to keep his Multiple Sclerosis at bay, only to learn that his insurance company would no longer pay for the expensive drug.  Although the insurer relented only days later, those few days were enough to cause debilitating and irreversible complications.  Lind became disabled, lost his ability to work, and now survives on disability payments.  A man who once had the dignity of work and the ability to pay taxes now must rely on welfare.

Jerome Johnson was born into poverty, and his first home was a public housing project in Detroit, Mich.  Although federal law requires housing authorities to find and remove lead paint in public housing, young Jerome grew up surrounded by walls covered in peeling and flaking lead paint.  By the time he was just two years old, Jerome was diagnosed with lead poisoning, a disease which causes permanent, irreversible brain damage.

Bridget Robb, James Lind and Jerome Johnson are all the victims of a tragic and avoidable injury.  Yet they are also all victims of a Supreme Court which for decades has placed its own deregulatory agenda ahead of the law and the public interest.  Earlier this month, a federal judge in Minnesota told Robb, and thousands like her who were implanted with a device that literally electrocuted them from the inside, that nothing could be done to hold the manufacturer of that device accountable.  The reason: a recent Supreme Court decision granting almost total lawsuit immunity to the makers of dangerous medical devices.  James Lind and Jerome Johnson have similar stories.  Lind is the victim of a series of Supreme Court decisions immunizing employer-provided health plans from accountability; and Johnson is the victim of another decision drastically limiting private individuals’ ability to enforce federal law.

Indeed, Robb, Lind and Johnson are only three of the many thousands of Americans rendered powerless by the Supreme Court’s deregulatory agenda—but the tide may finally be turning in their favor.  This month, President Barack Obama will likely sign the Lilly Ledbetter Fair Pay Act, a bill named for one of the most famous victims of an over-zealous Supreme Court.  Lilly Ledbetter spent almost two decades performing the same work as her male colleagues, but receiving only a fraction of their pay.  When she sought redress for nineteen years of pay discrimination, however, the Supreme Court kicked her to the curb.  Because Ledbetter did not learn that she was a victim of discrimination until many years after it began, the Court said her employer is immune from accountability.

In signing the Ledbetter Act, the president will not only reverse this embarrassment of a judicial decision, he may effectively end a forty-year period of almost unchecked deregulation by an increasingly out-of-touch judiciary.  With the possible exception of Justice Ruth Bader Ginsburg, every single justice appointed since Richard Nixon took the oath of office in 1969 has been more conservative than the person they replaced.  In the same forty-year period, conservatives have controlled the White House or at least one house of Congress for all but six years.  Thus, as the judiciary lurched to the right, the new justices co-ideologues held an effective veto power over laws which would overturn the increasingly conservative Court’s decisions. 

The Ledbetter Act represents a rare break in this pattern—a progressive bill, passed by a progressive Congress and signed by a progressive president, which overturns a conservative Supreme Court decision.  It sends a clear message that a new sheriff’s in town, and if the Court insists upon undermining basic civil rights, Congress and the president stand ready to restore what the justices tear down.

That said, there is cause for caution.

While congressional pushback against the conservative judiciary has been rare in the last forty years, it has not been unheard of.  In 1989, the Supreme Court held in Lorance v. AT&T Technologies that women who were laid off because of a discriminatory seniority system waited too long to challenge that system, even though they took action almost immediately after the lay-offs.  Two years later, Congress responded with the Civil Rights Act of 1991, which overruled Lorance and restored accountability to companies that discriminate against their employees.

If this story sounds familiar, that’s because it is.  The issue in Lorance is almost identical to the issue presented in Ledbetter.  Yet the Supreme Court not only ignored the fact that Lorance is no longer good law when it ruled against Lilly Ledbetter, it expressly relied on Lorance in tossing Ledbetter out of court!

Perhaps two times will be enough to convince the justices that Congress really means it when it says that women should not be subject to employment discrimination, but there is no guarantee that the Court will set aside its deregulatory agenda no matter how clearly Congress expresses its intent.  In the 1970s, for example, a contraceptive device known as the Dalkon Shield caused numerous infections and deaths.  Congress responded by requiring the FDA to approve new medical devices.  Even though Congress enacted this law to protect consumers from dangerous devices, the Court’s recent decision in Riegel v. Medtronic turns Congress’ intent on its head.  Under Riegel, a law which was intended to protect people like Bridget Robb, instead immunizes the manufacturers of dangerous medical devices from accountability.

Similarly, in 1974, Congress passed the Employee Retirement Income Security Act (“ERISA”) to protect the pensions and employer-provided health plans which millions of Americans rely upon.  Yet instead of reading this law to protect workers, the Supreme Court reads ERISA to shield rogue insurance companies against accountability to James Lind and other people injured by wrongful denials of coverage.

Congress must not stop by simply overruling Ledbetter, it must also restore accountability to companies who have profited—at the public’s expense—from Supreme Court decisions immunizing them from obeying the law.  It must send a loud and unambiguous message to the justices: “the era of deregulation is over,” and it must continue to send this message until the Court understands that it should faithfully interpret the laws Congress enacts, not impose its own conservative vision on the country.

Ultimately, however, such congressional vigilance may not be enough.  As the story of Lorance and Lilly Ledbetter shows, the justices are not always willing to set aside ideology—even when instructed to do so by an Act of Congress.  With this in mind, President Obama should remember Bridget Robb, James Lind and Jerome Johnson when he has the opportunity to replace one of the justices, and ensure that his appointments understand that no one is immune to following the law.

Full post as published by ACS Blog on January 26, 2009 (boomark / email).