About a month ago, Joshua Bell performed live in the subway. As arguably the premier violinist in the world, he might earn hundreds of thousands for a live performance at Carnegie Hall. The Washington Post was curious - would his performance attract attention from the rush of commuters hurrying to or from work?
The answer seems to be, no. Bell ended up with $32 in his case and most people who passed by him didn't recognize his playing as anything special. Absent the context of a concert hall and the social signals that screamed - this man is important, pay attention to him! - most people thought him rather unimportant and paid him little or no attention.
Judges know this. It is no coincidence that historians speak of the "royal court." One key to the nation-state's ascension to the point of having a monopoly on law and its interpretation was the promotion of the king's court as the true arbiters of justice.
For centuries, people have bowed their heads to the pronouncements of men in robes. It is no mystery why the Supreme Court would borrow from the wardrobe of priests and the architecture of the ancient Greeks. The trappings of ancient wisdom and revelation serve to make pronouncements that might otherwise seem arbitrary sound authoritative instead. To have 9 people at the diner counter opine about gender discrimination would lack the authority of pronouncements from an elevated dais.
The president of the U.S. decides who is worthy of Carnegie Hall performance, his utterances having the force of law, and who stays at the coffee shop diner, his utterances to be ignored by the waitress.
All that simply to say that this week's ruling by the Supreme Court would have been dismissed by any hard-working waitress with a sense of justice.
Lilly Ledbetter sued her employer, Goodyear Tire & Rubber, for gender discrimination. A jury agreed with her that her pay of $5,000 a year less than the lowest paid male peer was unfair and awarded her back pay and damages. The Supreme Court, in a 5-4 ruling, disagreed, stating that litigants had to sue within 180 days of the act of discrimination. Barring the fact that this seems to ignore the obvious problem of dating a pattern of discrimination, the ruling rested on the oddest precedent.
In 1991, a bipartisan majority of Congress passed a Civil Rights Restoration Act, reversing a series of decisions made by a conservative court. Conservatives argue against activist courts, stating that the role of courts is to interpret laws passed by congress, not make law. Yet this week, the Supreme Court ruling cited as precedent the decisions reversed by Congress's 1991 law.
If only men like Samuel Alito and Antonio Scalia were normal old men, sitting at the diner counter sipping coffee between talk about how women have gone too far, their odd opinions would be something the sore-footed waitress could shake her head at. As it is, they determine how this waitress is treated. Perhaps it is time to dress the court in Bermuda shorts and polo shirts. At least then their decisions would seem more honest than utterances from men dressed like priests or ancient philosophers.
For Slate's Richard Thompson Ford's take on this see:
The Supreme Court mixes up intending to screw over your employee and actually doing it.