WEBVTT - What Are Some of Ruth Bader Ginsburg's Harshest Dissents? 0:00:01.920 --> 0:00:06.400 Welcome to brain Stuff, a production of iHeart Radio. Hey 0:00:06.440 --> 0:00:10.639 brain Stuff, Lauren Bogobam Here. Last month, we ran an 0:00:10.640 --> 0:00:14.280 episode about the late Supreme Court Justice Ruth Bader Ginsburg 0:00:14.520 --> 0:00:17.680 and some of her historic concurring opinions during the twenty 0:00:17.680 --> 0:00:20.000 seven years that she sat on the highest court of 0:00:20.040 --> 0:00:23.800 the United States. Today, we wanted to highlight a few 0:00:23.840 --> 0:00:26.880 cases in which Justice Ginsburg did not agree with the 0:00:26.880 --> 0:00:30.480 majority opinion of the Court, because, after all, a dissenting 0:00:30.480 --> 0:00:35.080 opinion can be just as important. First up, let's look 0:00:35.080 --> 0:00:37.520 at the case of Bush versus Gore from the year 0:00:37.560 --> 0:00:41.040 two thousand. Anyone old enough to remember the two thousand 0:00:41.120 --> 0:00:46.280 presidential election probably shutters at the phrase hanging Chad, referring 0:00:46.320 --> 0:00:49.800 to an incompletely punched paper ballot. The figure of speech 0:00:49.840 --> 0:00:52.720 became a main staple of news headlines and late night 0:00:52.760 --> 0:00:56.560 TV monologues for months. It all started in the state 0:00:56.560 --> 0:00:59.960 of Florida, where it was reported that Republican presidential candidate 0:01:00.000 --> 0:01:03.560 George W. Bush had beat Democratic presidential candidate Al Gore 0:01:03.880 --> 0:01:06.560 by just one thousand, seven hundred and eighty four votes. 0:01:07.400 --> 0:01:10.400 Because the margin was so slim, just zero point zero 0:01:10.440 --> 0:01:14.600 one percent, state law required an automatic machine recount, which 0:01:14.600 --> 0:01:17.880 shrunk Bush's lead to just three hundred and twenty seven votes, 0:01:18.640 --> 0:01:21.959 when the margin is that tiny. Florida law allows candidates 0:01:21.959 --> 0:01:25.000 to request a manual recount, which is just what Gore 0:01:25.120 --> 0:01:29.319 did in the four counties that traditionally voted Democrat, Volucia, 0:01:29.520 --> 0:01:34.240 Palm Beach, Broward, and Miami Dade. The problem was the 0:01:34.319 --> 0:01:37.880 counties were given seven days to certify their election returns 0:01:37.920 --> 0:01:40.720 to the Secretary of State, and they were concerned that 0:01:40.760 --> 0:01:45.080 they wouldn't make the deadline. Three counties missed the deadline entirely, 0:01:45.560 --> 0:01:50.080 Palm Beach, Broward, and Miami Dade. Florida's Secretary of State, 0:01:50.160 --> 0:01:53.520 Katherine Harris, had required any counties who needed a later 0:01:53.560 --> 0:01:57.000 filing date to submit a written explanation of the circumstances, 0:01:57.800 --> 0:02:00.800 but none of the county's submissions met harry Us standards 0:02:00.840 --> 0:02:04.040 for an extension, so she went ahead and certified Bush 0:02:04.120 --> 0:02:08.040 as Florida's winner. Fast forward a few weeks to win 0:02:08.080 --> 0:02:10.399 Gore's campaign to pained an order from the Florida State 0:02:10.400 --> 0:02:14.720 Supreme Court for statewide manual recount. The next day, on 0:02:14.840 --> 0:02:17.280 December nine, in a five to four decision, the U 0:02:17.400 --> 0:02:20.359 S Supreme Court ruled that the manual recounts must halt 0:02:20.639 --> 0:02:24.080 and agreed to hear oral arguments from both parties. On 0:02:24.120 --> 0:02:28.160 December eleven, both parties presented their cases, Bush's team arguing 0:02:28.200 --> 0:02:30.959 that the Florida Supreme Court had exceeded its authority when 0:02:30.960 --> 0:02:34.480 it authorized the manual recount, the Gore's team arguing that 0:02:34.520 --> 0:02:37.080 the case had already been decided at state level and 0:02:37.200 --> 0:02:41.200 was not a matter for the federal courts. The U. S. 0:02:41.200 --> 0:02:44.000 Supreme Court, and a seven to two vote, overturned the 0:02:44.000 --> 0:02:47.480 Florida decision in favor of Bush's team, ruling that the 0:02:47.480 --> 0:02:50.920 Florida Supreme Court had violated the equal Protection clause of 0:02:50.960 --> 0:02:55.160 the Fourteenth Amendment. In the end, on the entire matter, 0:02:55.400 --> 0:02:58.440 the justices ruled five to four, with the majority arguing 0:02:58.480 --> 0:03:00.600 that the Florida Supreme Court's decision and to hold a 0:03:00.639 --> 0:03:04.720 statewide recount had created a new election law, something only 0:03:04.800 --> 0:03:09.600 the state legislator could do. Writing for the five justice majority, 0:03:09.840 --> 0:03:12.440 entered in Scalia stated the votes that were ordered to 0:03:12.480 --> 0:03:15.840 be counted were not legal votes, that is, those in 0:03:15.880 --> 0:03:18.360 which there is a clear indication of the intent of 0:03:18.360 --> 0:03:21.360 the voter, so the recount would do irreparable harm to 0:03:21.440 --> 0:03:25.760 Bush and the integrity of the democratic process. The dissenters, 0:03:25.880 --> 0:03:29.400 Ginsburg included, felt that the real threat to the democratic 0:03:29.440 --> 0:03:33.400 process was not ordering a recount despite being flawed. They 0:03:33.400 --> 0:03:36.640 said a recount should be allowed to proceed because no 0:03:36.800 --> 0:03:40.720 vote should have a deadline to be counted. One noteworthy 0:03:40.760 --> 0:03:43.720 aspect of ginsburg dissent, she ended it with a plain 0:03:44.000 --> 0:03:49.240 I dissent rather than her traditional I respectfully dissent. Next, 0:03:49.320 --> 0:03:52.600 let's look at the case of Shelby County versus Holder. 0:03:53.320 --> 0:03:56.160 To do so, let's go back to five at the 0:03:56.160 --> 0:03:58.960 height of the Civil rights movement, when Congress enacted the 0:03:59.000 --> 0:04:01.800 Voting Rights Act QUOTE to banish the blight of racial 0:04:01.840 --> 0:04:05.920 discrimination in voting, which had been rampant even after previous 0:04:06.000 --> 0:04:09.840 legislature had technically made it legal for black people, Indigenous people, 0:04:10.000 --> 0:04:14.200 and people of color to vote across the United States. 0:04:14.200 --> 0:04:17.239 Certain sections of the Act created rules meant to protect 0:04:17.240 --> 0:04:20.640 it from changes down the road. In particular, Section four 0:04:20.720 --> 0:04:23.760 B established a formula to identify areas of the country 0:04:23.800 --> 0:04:27.719 where discriminatory tests or devices had been most prevalent, and 0:04:27.760 --> 0:04:31.760 to provide stricter provisions in those areas. These tests or 0:04:31.760 --> 0:04:37.000 devices included voting prerequisites like literacy tests, and under section 0:04:37.080 --> 0:04:40.160 five of the Act, jurisdictions were required to seek approval 0:04:40.200 --> 0:04:43.240 by the Attorney General or a three judge DC panel 0:04:43.560 --> 0:04:47.440 before making any changes to voting practices. This feature of 0:04:47.480 --> 0:04:50.880 the Act, known as a preclearance, was meant to ensure 0:04:50.920 --> 0:04:53.919 that new changes would have neither the intent nor the 0:04:53.960 --> 0:04:59.200 effect of racial discrimination on voting. While Section five was 0:04:59.240 --> 0:05:03.279 initially set expire after five years, the Act was reauthorized 0:05:03.320 --> 0:05:09.280 several times over the decades. Then in Alabama's Shelby County 0:05:09.520 --> 0:05:13.440 challenged its constitutionality based on these tests and devices and 0:05:13.560 --> 0:05:18.360 preclearance requirements. The claim was that the sections exceeded Congress's 0:05:18.440 --> 0:05:23.280 power and thus were unconstitutional. According to the Supreme Courts 0:05:23.320 --> 0:05:27.560 five to four majority opinion, Section four was deemed unconstitutional 0:05:27.720 --> 0:05:30.479 because it imposed burdens that no longer made sense in 0:05:30.520 --> 0:05:34.039 the modern era and represented an unconstitutional violation of the 0:05:34.080 --> 0:05:36.960 power to regulate elections, which are supposed to be governed 0:05:37.000 --> 0:05:42.200 by the states themselves. In another major descent, Ginsburg argued 0:05:42.200 --> 0:05:46.080 that the amendments support Congress's authority to enact legislation specifically 0:05:46.120 --> 0:05:49.919 targeting potential state abuses as long as Congress demonstrates that 0:05:49.960 --> 0:05:54.120 the means taken rationally advanced a legitimate objective, like the 0:05:54.200 --> 0:05:58.200 Voting Rights Act. She wrote, growing up preclearance when it 0:05:58.240 --> 0:06:01.480 has worked and is continuing to war to stop discriminatory 0:06:01.600 --> 0:06:04.920 changes is like throwing away your umbrella in a rainstorm 0:06:05.040 --> 0:06:10.440 because you're not getting wet. Ginsburg wasn't alone in her opinion. 0:06:10.960 --> 0:06:14.159 Many leaders in politics and law expressed deep disappointment with 0:06:14.200 --> 0:06:17.800 the decision, and since the ruling, several states that were 0:06:17.839 --> 0:06:22.200 once covered under preclearance have passed laws to remove provisions 0:06:22.200 --> 0:06:26.520 like online voting registration and early voting. Five years after 0:06:26.560 --> 0:06:30.119 the ruling, nearly a thousand polling places had been shut down, 0:06:30.520 --> 0:06:36.120 many of which were located in predominantly African American communities. Finally, 0:06:36.360 --> 0:06:39.040 let's consider the two thousand seven case of lead Better 0:06:39.200 --> 0:06:42.919 versus Goodyear Tire and Rubber Company. Anyone who saw the 0:06:42.960 --> 0:06:47.679 documentary RBG probably remembers the assertive Alabama drawl of Lily 0:06:47.800 --> 0:06:51.760 lead Better, the plaintiff in this important case of employment discrimination, 0:06:52.800 --> 0:06:55.280 over the course of her nearly two decade career at 0:06:55.279 --> 0:06:57.919 the good Year Planned in Gadsden, Alabama, where lad Better 0:06:58.000 --> 0:07:00.799 was one of just a few female supervisors. Led Better 0:07:00.839 --> 0:07:03.839 faced sexual harassment and was tolled by her employer that 0:07:03.920 --> 0:07:08.719 women shouldn't be working there because salaried employees or given 0:07:08.800 --> 0:07:12.840 or denied raises based on performance evaluations. Leadbetter believed she 0:07:12.920 --> 0:07:16.880 was being short changed compared with her male counterparts. Good 0:07:16.920 --> 0:07:20.559 Year forbade employees to discuss pay, so lad Better didn't 0:07:20.600 --> 0:07:23.960 have solid proof of any sex based discrimination until she 0:07:24.040 --> 0:07:28.080 received an anonymous note listing the salaries of three male managers. 0:07:28.800 --> 0:07:30.960 That's when she learned that she had been paid forty 0:07:31.000 --> 0:07:34.000 percent less than the men with equal jobs in her division. 0:07:34.560 --> 0:07:37.280 Lad Better filed suit after her retirement in November of 0:07:37.360 --> 0:07:40.640 nineteen ninety eight, claiming discrimination under Title seven of the 0:07:40.680 --> 0:07:44.160 Civil Rights Act of nineteen sixty four, which prohibits employers 0:07:44.200 --> 0:07:47.960 from discriminating against employees on the basis of sex, race, color, 0:07:48.200 --> 0:07:52.360 national origin, and religion. The district court awarded lad Better 0:07:52.520 --> 0:07:55.680 over three point five million dollars in back pay and damages, 0:07:55.880 --> 0:07:58.600 which the judge later reduced to three hundred and sixty 0:07:58.600 --> 0:08:03.680 thousand dollars, but upon repeal, Goodyear argued that four Leadbetters 0:08:03.760 --> 0:08:07.440 claims to hold up in court the alleged discriminatory events 0:08:07.480 --> 0:08:09.720 would have had to occur within the one hundred and 0:08:09.760 --> 0:08:13.120 eighty day period before her filing, and that since she 0:08:13.160 --> 0:08:17.920 had waited, her claim should not stand. The Eleventh Circuit 0:08:18.080 --> 0:08:21.120 ruled in good Year's favor, and while there were to 0:08:21.400 --> 0:08:24.480 pay decisions made during that one and eighty day period, 0:08:24.840 --> 0:08:27.960 the court felt quote, there was insufficient evidence to prove 0:08:28.040 --> 0:08:31.280 that Goodyear had acted with discriminatory intent during that time. 0:08:32.760 --> 0:08:34.720 When the case made it to the Supreme Court, the 0:08:34.800 --> 0:08:37.560 justices had to decide whether a plaintiff is allowed to 0:08:37.600 --> 0:08:40.480 bring an action under Title seven when the illegal pay 0:08:40.520 --> 0:08:44.559 discrimination their alleging occurred outside of the statutory limitations period. 0:08:45.280 --> 0:08:48.240 The Court voted five to four the Leadbetter had missed 0:08:48.280 --> 0:08:54.240 her window. Ginsburg wrote a passionate dissent, arguing that quote, 0:08:54.480 --> 0:08:57.720 pay disparities often occur, as they did in Leadbetters case 0:08:57.960 --> 0:09:01.840 in small increments cause to suspect that discrimination is at work, 0:09:01.960 --> 0:09:06.520 develops only over time. Comparative pay information, moreover, is often 0:09:06.600 --> 0:09:10.520 hidden from the employee's view. Employers may keep under wraps 0:09:10.559 --> 0:09:14.320 the pay differentials maintained among supervisors, no less the reasons 0:09:14.320 --> 0:09:18.400 for those differentials. Small initial discrepancies may not be seen 0:09:18.480 --> 0:09:21.960 as meat for a federal case, particularly when the employee 0:09:22.040 --> 0:09:25.160 trying to succeed in a non traditional environment is averse 0:09:25.240 --> 0:09:29.520 to making ways. While the case didn't turn out as 0:09:29.600 --> 0:09:31.960 lead Better supporters had hoped, it did go on to 0:09:32.000 --> 0:09:35.160 make history. On January twenty nine of two thousand nine, 0:09:35.400 --> 0:09:38.880 President Barack Obama signed the Lily Leadbetter Fair Pay Act 0:09:39.200 --> 0:09:42.360 as the first piece of legislation of his administration. The 0:09:42.440 --> 0:09:45.960 law overturned the Supreme Court's decision and states that each 0:09:46.000 --> 0:09:50.480 paycheck containing discriminatory compensation is a separate violation, no matter 0:09:50.520 --> 0:09:58.760 when that discrimination began. Today's episode was written by John 0:09:58.760 --> 0:10:01.199 Partano and produced by Eyler Clay. From one on this 0:10:01.360 --> 0:10:03.560 and lots of other curious topics, visit how stuff works 0:10:03.559 --> 0:10:05.920 dot com. Brainstuff is a production of I Heart Radio. 0:10:06.120 --> 0:10:08.840 For more podcasts my heart Radio, visit the iHeart Radio app, 0:10:08.960 --> 0:10:11.600 Apple Podcasts, or wherever you listen to your favorite shows.