1 00:00:01,920 --> 00:00:06,400 Speaker 1: Welcome to brain Stuff, a production of iHeart Radio. Hey 2 00:00:06,440 --> 00:00:10,639 Speaker 1: brain Stuff, Lauren Bogobam Here. Last month, we ran an 3 00:00:10,640 --> 00:00:14,280 Speaker 1: episode about the late Supreme Court Justice Ruth Bader Ginsburg 4 00:00:14,520 --> 00:00:17,680 Speaker 1: and some of her historic concurring opinions during the twenty 5 00:00:17,680 --> 00:00:20,000 Speaker 1: seven years that she sat on the highest court of 6 00:00:20,040 --> 00:00:23,800 Speaker 1: the United States. Today, we wanted to highlight a few 7 00:00:23,840 --> 00:00:26,880 Speaker 1: cases in which Justice Ginsburg did not agree with the 8 00:00:26,880 --> 00:00:30,480 Speaker 1: majority opinion of the Court, because, after all, a dissenting 9 00:00:30,480 --> 00:00:35,080 Speaker 1: opinion can be just as important. First up, let's look 10 00:00:35,080 --> 00:00:37,520 Speaker 1: at the case of Bush versus Gore from the year 11 00:00:37,560 --> 00:00:41,040 Speaker 1: two thousand. Anyone old enough to remember the two thousand 12 00:00:41,120 --> 00:00:46,280 Speaker 1: presidential election probably shutters at the phrase hanging Chad, referring 13 00:00:46,320 --> 00:00:49,800 Speaker 1: to an incompletely punched paper ballot. The figure of speech 14 00:00:49,840 --> 00:00:52,720 Speaker 1: became a main staple of news headlines and late night 15 00:00:52,760 --> 00:00:56,560 Speaker 1: TV monologues for months. It all started in the state 16 00:00:56,560 --> 00:00:59,960 Speaker 1: of Florida, where it was reported that Republican presidential candidate 17 00:01:00,000 --> 00:01:03,560 Speaker 1: George W. Bush had beat Democratic presidential candidate Al Gore 18 00:01:03,880 --> 00:01:06,560 Speaker 1: by just one thousand, seven hundred and eighty four votes. 19 00:01:07,400 --> 00:01:10,400 Speaker 1: Because the margin was so slim, just zero point zero 20 00:01:10,440 --> 00:01:14,600 Speaker 1: one percent, state law required an automatic machine recount, which 21 00:01:14,600 --> 00:01:17,880 Speaker 1: shrunk Bush's lead to just three hundred and twenty seven votes, 22 00:01:18,640 --> 00:01:21,959 Speaker 1: when the margin is that tiny. Florida law allows candidates 23 00:01:21,959 --> 00:01:25,000 Speaker 1: to request a manual recount, which is just what Gore 24 00:01:25,120 --> 00:01:29,319 Speaker 1: did in the four counties that traditionally voted Democrat, Volucia, 25 00:01:29,520 --> 00:01:34,240 Speaker 1: Palm Beach, Broward, and Miami Dade. The problem was the 26 00:01:34,319 --> 00:01:37,880 Speaker 1: counties were given seven days to certify their election returns 27 00:01:37,920 --> 00:01:40,720 Speaker 1: to the Secretary of State, and they were concerned that 28 00:01:40,760 --> 00:01:45,080 Speaker 1: they wouldn't make the deadline. Three counties missed the deadline entirely, 29 00:01:45,560 --> 00:01:50,080 Speaker 1: Palm Beach, Broward, and Miami Dade. Florida's Secretary of State, 30 00:01:50,160 --> 00:01:53,520 Speaker 1: Katherine Harris, had required any counties who needed a later 31 00:01:53,560 --> 00:01:57,000 Speaker 1: filing date to submit a written explanation of the circumstances, 32 00:01:57,800 --> 00:02:00,800 Speaker 1: but none of the county's submissions met harry Us standards 33 00:02:00,840 --> 00:02:04,040 Speaker 1: for an extension, so she went ahead and certified Bush 34 00:02:04,120 --> 00:02:08,040 Speaker 1: as Florida's winner. Fast forward a few weeks to win 35 00:02:08,080 --> 00:02:10,399 Speaker 1: Gore's campaign to pained an order from the Florida State 36 00:02:10,400 --> 00:02:14,720 Speaker 1: Supreme Court for statewide manual recount. The next day, on 37 00:02:14,840 --> 00:02:17,280 Speaker 1: December nine, in a five to four decision, the U 38 00:02:17,400 --> 00:02:20,359 Speaker 1: S Supreme Court ruled that the manual recounts must halt 39 00:02:20,639 --> 00:02:24,080 Speaker 1: and agreed to hear oral arguments from both parties. On 40 00:02:24,120 --> 00:02:28,160 Speaker 1: December eleven, both parties presented their cases, Bush's team arguing 41 00:02:28,200 --> 00:02:30,959 Speaker 1: that the Florida Supreme Court had exceeded its authority when 42 00:02:30,960 --> 00:02:34,480 Speaker 1: it authorized the manual recount, the Gore's team arguing that 43 00:02:34,520 --> 00:02:37,080 Speaker 1: the case had already been decided at state level and 44 00:02:37,200 --> 00:02:41,200 Speaker 1: was not a matter for the federal courts. The U. S. 45 00:02:41,200 --> 00:02:44,000 Speaker 1: Supreme Court, and a seven to two vote, overturned the 46 00:02:44,000 --> 00:02:47,480 Speaker 1: Florida decision in favor of Bush's team, ruling that the 47 00:02:47,480 --> 00:02:50,920 Speaker 1: Florida Supreme Court had violated the equal Protection clause of 48 00:02:50,960 --> 00:02:55,160 Speaker 1: the Fourteenth Amendment. In the end, on the entire matter, 49 00:02:55,400 --> 00:02:58,440 Speaker 1: the justices ruled five to four, with the majority arguing 50 00:02:58,480 --> 00:03:00,600 Speaker 1: that the Florida Supreme Court's decision and to hold a 51 00:03:00,639 --> 00:03:04,720 Speaker 1: statewide recount had created a new election law, something only 52 00:03:04,800 --> 00:03:09,600 Speaker 1: the state legislator could do. Writing for the five justice majority, 53 00:03:09,840 --> 00:03:12,440 Speaker 1: entered in Scalia stated the votes that were ordered to 54 00:03:12,480 --> 00:03:15,840 Speaker 1: be counted were not legal votes, that is, those in 55 00:03:15,880 --> 00:03:18,360 Speaker 1: which there is a clear indication of the intent of 56 00:03:18,360 --> 00:03:21,360 Speaker 1: the voter, so the recount would do irreparable harm to 57 00:03:21,440 --> 00:03:25,760 Speaker 1: Bush and the integrity of the democratic process. The dissenters, 58 00:03:25,880 --> 00:03:29,400 Speaker 1: Ginsburg included, felt that the real threat to the democratic 59 00:03:29,440 --> 00:03:33,400 Speaker 1: process was not ordering a recount despite being flawed. They 60 00:03:33,400 --> 00:03:36,640 Speaker 1: said a recount should be allowed to proceed because no 61 00:03:36,800 --> 00:03:40,720 Speaker 1: vote should have a deadline to be counted. One noteworthy 62 00:03:40,760 --> 00:03:43,720 Speaker 1: aspect of ginsburg dissent, she ended it with a plain 63 00:03:44,000 --> 00:03:49,240 Speaker 1: I dissent rather than her traditional I respectfully dissent. Next, 64 00:03:49,320 --> 00:03:52,600 Speaker 1: let's look at the case of Shelby County versus Holder. 65 00:03:53,320 --> 00:03:56,160 Speaker 1: To do so, let's go back to five at the 66 00:03:56,160 --> 00:03:58,960 Speaker 1: height of the Civil rights movement, when Congress enacted the 67 00:03:59,000 --> 00:04:01,800 Speaker 1: Voting Rights Act QUOTE to banish the blight of racial 68 00:04:01,840 --> 00:04:05,920 Speaker 1: discrimination in voting, which had been rampant even after previous 69 00:04:06,000 --> 00:04:09,840 Speaker 1: legislature had technically made it legal for black people, Indigenous people, 70 00:04:10,000 --> 00:04:14,200 Speaker 1: and people of color to vote across the United States. 71 00:04:14,200 --> 00:04:17,239 Speaker 1: Certain sections of the Act created rules meant to protect 72 00:04:17,240 --> 00:04:20,640 Speaker 1: it from changes down the road. In particular, Section four 73 00:04:20,720 --> 00:04:23,760 Speaker 1: B established a formula to identify areas of the country 74 00:04:23,800 --> 00:04:27,719 Speaker 1: where discriminatory tests or devices had been most prevalent, and 75 00:04:27,760 --> 00:04:31,760 Speaker 1: to provide stricter provisions in those areas. These tests or 76 00:04:31,760 --> 00:04:37,000 Speaker 1: devices included voting prerequisites like literacy tests, and under section 77 00:04:37,080 --> 00:04:40,160 Speaker 1: five of the Act, jurisdictions were required to seek approval 78 00:04:40,200 --> 00:04:43,240 Speaker 1: by the Attorney General or a three judge DC panel 79 00:04:43,560 --> 00:04:47,440 Speaker 1: before making any changes to voting practices. This feature of 80 00:04:47,480 --> 00:04:50,880 Speaker 1: the Act, known as a preclearance, was meant to ensure 81 00:04:50,920 --> 00:04:53,919 Speaker 1: that new changes would have neither the intent nor the 82 00:04:53,960 --> 00:04:59,200 Speaker 1: effect of racial discrimination on voting. While Section five was 83 00:04:59,240 --> 00:05:03,279 Speaker 1: initially set expire after five years, the Act was reauthorized 84 00:05:03,320 --> 00:05:09,280 Speaker 1: several times over the decades. Then in Alabama's Shelby County 85 00:05:09,520 --> 00:05:13,440 Speaker 1: challenged its constitutionality based on these tests and devices and 86 00:05:13,560 --> 00:05:18,360 Speaker 1: preclearance requirements. The claim was that the sections exceeded Congress's 87 00:05:18,440 --> 00:05:23,280 Speaker 1: power and thus were unconstitutional. According to the Supreme Courts 88 00:05:23,320 --> 00:05:27,560 Speaker 1: five to four majority opinion, Section four was deemed unconstitutional 89 00:05:27,720 --> 00:05:30,479 Speaker 1: because it imposed burdens that no longer made sense in 90 00:05:30,520 --> 00:05:34,039 Speaker 1: the modern era and represented an unconstitutional violation of the 91 00:05:34,080 --> 00:05:36,960 Speaker 1: power to regulate elections, which are supposed to be governed 92 00:05:37,000 --> 00:05:42,200 Speaker 1: by the states themselves. In another major descent, Ginsburg argued 93 00:05:42,200 --> 00:05:46,080 Speaker 1: that the amendments support Congress's authority to enact legislation specifically 94 00:05:46,120 --> 00:05:49,919 Speaker 1: targeting potential state abuses as long as Congress demonstrates that 95 00:05:49,960 --> 00:05:54,120 Speaker 1: the means taken rationally advanced a legitimate objective, like the 96 00:05:54,200 --> 00:05:58,200 Speaker 1: Voting Rights Act. She wrote, growing up preclearance when it 97 00:05:58,240 --> 00:06:01,480 Speaker 1: has worked and is continuing to war to stop discriminatory 98 00:06:01,600 --> 00:06:04,920 Speaker 1: changes is like throwing away your umbrella in a rainstorm 99 00:06:05,040 --> 00:06:10,440 Speaker 1: because you're not getting wet. Ginsburg wasn't alone in her opinion. 100 00:06:10,960 --> 00:06:14,159 Speaker 1: Many leaders in politics and law expressed deep disappointment with 101 00:06:14,200 --> 00:06:17,800 Speaker 1: the decision, and since the ruling, several states that were 102 00:06:17,839 --> 00:06:22,200 Speaker 1: once covered under preclearance have passed laws to remove provisions 103 00:06:22,200 --> 00:06:26,520 Speaker 1: like online voting registration and early voting. Five years after 104 00:06:26,560 --> 00:06:30,119 Speaker 1: the ruling, nearly a thousand polling places had been shut down, 105 00:06:30,520 --> 00:06:36,120 Speaker 1: many of which were located in predominantly African American communities. Finally, 106 00:06:36,360 --> 00:06:39,040 Speaker 1: let's consider the two thousand seven case of lead Better 107 00:06:39,200 --> 00:06:42,919 Speaker 1: versus Goodyear Tire and Rubber Company. Anyone who saw the 108 00:06:42,960 --> 00:06:47,679 Speaker 1: documentary RBG probably remembers the assertive Alabama drawl of Lily 109 00:06:47,800 --> 00:06:51,760 Speaker 1: lead Better, the plaintiff in this important case of employment discrimination, 110 00:06:52,800 --> 00:06:55,280 Speaker 1: over the course of her nearly two decade career at 111 00:06:55,279 --> 00:06:57,919 Speaker 1: the good Year Planned in Gadsden, Alabama, where lad Better 112 00:06:58,000 --> 00:07:00,799 Speaker 1: was one of just a few female supervisors. Led Better 113 00:07:00,839 --> 00:07:03,839 Speaker 1: faced sexual harassment and was tolled by her employer that 114 00:07:03,920 --> 00:07:08,719 Speaker 1: women shouldn't be working there because salaried employees or given 115 00:07:08,800 --> 00:07:12,840 Speaker 1: or denied raises based on performance evaluations. Leadbetter believed she 116 00:07:12,920 --> 00:07:16,880 Speaker 1: was being short changed compared with her male counterparts. Good 117 00:07:16,920 --> 00:07:20,559 Speaker 1: Year forbade employees to discuss pay, so lad Better didn't 118 00:07:20,600 --> 00:07:23,960 Speaker 1: have solid proof of any sex based discrimination until she 119 00:07:24,040 --> 00:07:28,080 Speaker 1: received an anonymous note listing the salaries of three male managers. 120 00:07:28,800 --> 00:07:30,960 Speaker 1: That's when she learned that she had been paid forty 121 00:07:31,000 --> 00:07:34,000 Speaker 1: percent less than the men with equal jobs in her division. 122 00:07:34,560 --> 00:07:37,280 Speaker 1: Lad Better filed suit after her retirement in November of 123 00:07:37,360 --> 00:07:40,640 Speaker 1: nineteen ninety eight, claiming discrimination under Title seven of the 124 00:07:40,680 --> 00:07:44,160 Speaker 1: Civil Rights Act of nineteen sixty four, which prohibits employers 125 00:07:44,200 --> 00:07:47,960 Speaker 1: from discriminating against employees on the basis of sex, race, color, 126 00:07:48,200 --> 00:07:52,360 Speaker 1: national origin, and religion. The district court awarded lad Better 127 00:07:52,520 --> 00:07:55,680 Speaker 1: over three point five million dollars in back pay and damages, 128 00:07:55,880 --> 00:07:58,600 Speaker 1: which the judge later reduced to three hundred and sixty 129 00:07:58,600 --> 00:08:03,680 Speaker 1: thousand dollars, but upon repeal, Goodyear argued that four Leadbetters 130 00:08:03,760 --> 00:08:07,440 Speaker 1: claims to hold up in court the alleged discriminatory events 131 00:08:07,480 --> 00:08:09,720 Speaker 1: would have had to occur within the one hundred and 132 00:08:09,760 --> 00:08:13,120 Speaker 1: eighty day period before her filing, and that since she 133 00:08:13,160 --> 00:08:17,920 Speaker 1: had waited, her claim should not stand. The Eleventh Circuit 134 00:08:18,080 --> 00:08:21,120 Speaker 1: ruled in good Year's favor, and while there were to 135 00:08:21,400 --> 00:08:24,480 Speaker 1: pay decisions made during that one and eighty day period, 136 00:08:24,840 --> 00:08:27,960 Speaker 1: the court felt quote, there was insufficient evidence to prove 137 00:08:28,040 --> 00:08:31,280 Speaker 1: that Goodyear had acted with discriminatory intent during that time. 138 00:08:32,760 --> 00:08:34,720 Speaker 1: When the case made it to the Supreme Court, the 139 00:08:34,800 --> 00:08:37,560 Speaker 1: justices had to decide whether a plaintiff is allowed to 140 00:08:37,600 --> 00:08:40,480 Speaker 1: bring an action under Title seven when the illegal pay 141 00:08:40,520 --> 00:08:44,559 Speaker 1: discrimination their alleging occurred outside of the statutory limitations period. 142 00:08:45,280 --> 00:08:48,240 Speaker 1: The Court voted five to four the Leadbetter had missed 143 00:08:48,280 --> 00:08:54,240 Speaker 1: her window. Ginsburg wrote a passionate dissent, arguing that quote, 144 00:08:54,480 --> 00:08:57,720 Speaker 1: pay disparities often occur, as they did in Leadbetters case 145 00:08:57,960 --> 00:09:01,840 Speaker 1: in small increments cause to suspect that discrimination is at work, 146 00:09:01,960 --> 00:09:06,520 Speaker 1: develops only over time. Comparative pay information, moreover, is often 147 00:09:06,600 --> 00:09:10,520 Speaker 1: hidden from the employee's view. Employers may keep under wraps 148 00:09:10,559 --> 00:09:14,320 Speaker 1: the pay differentials maintained among supervisors, no less the reasons 149 00:09:14,320 --> 00:09:18,400 Speaker 1: for those differentials. Small initial discrepancies may not be seen 150 00:09:18,480 --> 00:09:21,960 Speaker 1: as meat for a federal case, particularly when the employee 151 00:09:22,040 --> 00:09:25,160 Speaker 1: trying to succeed in a non traditional environment is averse 152 00:09:25,240 --> 00:09:29,520 Speaker 1: to making ways. While the case didn't turn out as 153 00:09:29,600 --> 00:09:31,960 Speaker 1: lead Better supporters had hoped, it did go on to 154 00:09:32,000 --> 00:09:35,160 Speaker 1: make history. On January twenty nine of two thousand nine, 155 00:09:35,400 --> 00:09:38,880 Speaker 1: President Barack Obama signed the Lily Leadbetter Fair Pay Act 156 00:09:39,200 --> 00:09:42,360 Speaker 1: as the first piece of legislation of his administration. The 157 00:09:42,440 --> 00:09:45,960 Speaker 1: law overturned the Supreme Court's decision and states that each 158 00:09:46,000 --> 00:09:50,480 Speaker 1: paycheck containing discriminatory compensation is a separate violation, no matter 159 00:09:50,520 --> 00:09:58,760 Speaker 1: when that discrimination began. Today's episode was written by John 160 00:09:58,760 --> 00:10:01,199 Speaker 1: Partano and produced by Eyler Clay. From one on this 161 00:10:01,360 --> 00:10:03,560 Speaker 1: and lots of other curious topics, visit how stuff works 162 00:10:03,559 --> 00:10:05,920 Speaker 1: dot com. Brainstuff is a production of I Heart Radio. 163 00:10:06,120 --> 00:10:08,840 Speaker 1: For more podcasts my heart Radio, visit the iHeart Radio app, 164 00:10:08,960 --> 00:10:11,600 Speaker 1: Apple Podcasts, or wherever you listen to your favorite shows.