Supreme Court Upholds Gender Gap

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Not really, but that's what Mother Jones wants you to believe. With "Supreme Court Upholds Pension Gender Gap" as a headline, they want to send the signal that the Supreme Court has considered the existence of a gender gap in who receives how much of a pension and deemed it just fine. That suggests the view that what the Supreme Court is about is results. We should evaluate them according to whether they decided cases that give us the right results. Several justices on the Supreme Court might be happy about such a description, but I'm sure that at least four of the seven justices in the majority in this decision would not, and I'd guess that most or all of the other justices would not approve of such a description (even if I happen to think it's true of some of them).

If you read the article, it actually undoes a lot of the damage from the headline. Authors of op-eds don't usually choose their own headlines, and I'm guessing that's what happened here, so I'm not blaming the author, whose article is largely accurate and doesn't really spin the facts too significantly. The issue before the court involved a 1978 law that makes it illegal to discriminate against women who take maternity leave when counting pension benefits, because standard practice at the time was not to count maternity leaves as time served when calculating how many years someone worked for the company. That law counted such a practice as discrimination, and it made it illegal to ignore the time a woman was not working if the reason was maternity leave.

The issue before the court was whether a maternity leave that occurred before that law was passed was similarly affected. The majority ruled 7-2 that the law was not retroactive, and thus when it was passed it did not suddenly pass on the features of future maternity leaves to past ones. In other words, it is not illegal now not to count the maternity leaves before this practice counted as discriminatory, but it is illegal now not to count the maternity leaves after the laws was passed.

So the majority ruled in this case that the law that makes this kind of discrimination illegal wasn't a retroactive law, i.e. it didn't make what people had done before the law was passed suddenly criminal when it had been legal before that. It also treated the discrimination the law prevents as occurring when the maternity leave was taken, not when the pension benefits are calculated. I haven't had time to research the law itself or the claims of either side in how to interpret it. I'm certainly open to Justice Ginsburg's dissenting argument that the majority interpreted the law wrongly. In fact, I'd probably lean that way just from what I've read in several accounts. I'd be a little surprised if the law was narrowly about how a company counts maternity leaves at the time they occur rather than about how a company should count previous ones when it calculates benefits much later. So if I had to guess my view on the legal question, I'd predict that I'd have strong inclinations to hear out Justice Ginsburg's argument, since it seems more likely to be correct from what I've seen.

This isn't to say that I agree with that as a policy matter. There are two kinds of fairness at odds here, fairness of outcome and fairness of granting someone credit only for what they contribute to the company. If you begin with a socialist conception of justice, you would consider any inequality of outcome to be unfair and immoral. On the other hand, a libertarian conception of justice would consider such a view to amount to stealing from those who actually contributed to the company for all the hours being counted in their favor. It may be unfair on one level that women can't help having to take time off from work for maternity leave, but it's also unfair on a differently level to count that time as work time when someone else actually put in more time working for the company and didn't get to have time off count. One might see that as discriminating in favor of women who take maternity leave against those who don't (including women and men). If all you care about is the just result, your views on such matters will enter in to the calculation of whether this outcome is just. One can take either view on that matter and still decide this case either way. (And I want to say that those views aren't mutually exclusive. You might think both kinds of justice are morally important. I in fact do, and I'm not sure how I'd sort that out in this kind of case. I would be open to being convinced by policy arguments either way if I were in Congress debating such a law.)

If the justices were using such considerations, I think a stronger case could be made that they simply upheld the gender gap. But the reasoning they actually gave was about legal matters. As I said, I might actually lean in the opposite direction on those legal matters (even if as a policy matter I think a case can be made either way in terms of whether we should have such a law to begin with). Nevertheless, it strikes me as strongly misleading to say this decision upholds the pension gender gap, for several reasons.

One is that the effect of this isn't really to uphold the pension gender gap <i>per se</i>. What it does is allow one particular component of a source of a gender gap to remain legal. The bulk of that source has been illegal since 1978. No maternity leaves that have occurred after 1978 can be discounted when calculating pension benefits. It's only the maternity leaves before that point that can be discounted (not that they must be; according to this decision, the law is simply silent about this point). The effect of this decision is that any difference between men's and women's pensions because of maternity leaves before 1978 will not be remedied by this particular discrimination law.

This isn't about the pension gender gap itself but just one contributing factor toward it. It doesn't endorse the gap as a good thing but simply declares that one law doesn't cover this one factor that has led to it. But if you just read the headline, you'd get the impression that the Supreme Court had evaluated the gender gap itself and decided it was just fine, either by declaring it itself legal or by declaring the policies companies engage in that cause it to be morally OK or good policy. It did none of those things.

This was also a 7-2 decision, so it's hard to make a claim that it was decided on ideological grounds. This was no bare 5-4 majority by the four conservatives and the swing vote of Justice Kennedy. Liberal stalwart Justice Stevens gave his vote, and reliable liberal vote Justice Souter, President George H.W. Bush's big dis-appointment (pun intended), actually wrote the opinion. For all I know, the majority was wrong. The summary at SCOTUSBlog seemed to me as if Justice Ginsburg's dissent had the sort of arguments that would require me to look more closely at the original law and read her argument in full, and I don't have the time to do that. So I'll have to remain unsure on whether this decision was correct. Still, I don't think it has anything to do with upholding the pension gap as a good thing worth preserving, and that's what the headline suggests.

I don't think it's this sort of misleading description of court decisions that causes the politicization of the Supreme Court and federal appeals court nominations. I think it's actually the judges themselves who do that, at least the ones who decide cases based on political preference rather than on the law. By taking on cases and deciding them for political reasons, they enshrine decisions into law without going through the political process, which can easily be undone as political preference shifts to a different majority in the legislative branch. When the Supreme Court declares a constitutional right that's not really in the Constitution, however, there's nothing the legislature can do without an extremely strong majority in Congress and an extremely popular opposition to the decision, since the difficult process of constitutional amendments is the only way around it unless the long process of appointing Supreme Court justices who will overturn the decision can occur first. I think it's the fault of the Supreme Court itself (or at least past members of it) that the appointment process is what it is. But I don't think it helps matters when we get headlines like this, and some authors are much less careful and actually say this sort of thing in the article itself (something politicians are even more inclined to do than reporters, I would say). That doesn't really help the problem.

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