Law: May 2009 Archives

A Few Quick Notes

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1. I've been extremely busy. I'm teaching two summer classes and barely keeping up with them. Plus the kids have been sick, meaning some have been home and in need of more attention than normal. So I haven't had time to do much blogging. But I've got a few things I've been thinking about that I did manage to put in Facebook updates, which I might as well put here in lieu of anything that will take more time than I have.

2. Remember when Rosie O'Donnell outrageously called it a separation of church and state for President Bush to take the religious identification on the Supreme Court from three to give Catholics, making Catholic justices the majority? I just thought it was worth noticing that President Obama has nominated another self-identified Roman Catholic to replace another Protestant, and I've yet to hear any similar claims from Rosie O'Donnell (although I did hear that Christopher Hitchens is being consistent on this by finding it grave and troubling).

3. I heard a strange NPR story on the dangers of fracking. It took a little listening to discover that they meant this. It was hard to listen with a straight face. I don't know how the reporter got through it.

4. The Supreme Court could rule as early as Monday on a case Judge Sotomayor was involved in that could lead to some real fodder for criticism in her hearing. SCOTUSBlog has an excellent presentation of the issue and how it might go.

5. Once I get a breather I intend to look closely at some of the Sotomayor stuff that SCOTUSBlog has been posting since before her nomination even occurred. I haven't had time to comment on her nomination, but I'm not sure I would even know what to say just yet. Her actual opinions are kind of important, and most criticism so far has not focused on them but on some political speeches and interviews she's given.

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.

A U.S. District Court in California has ruled that it's unconstitutional for a public school teacher to say that creationism is superstitious nonsense. According to Supreme Court precedent going back to 1984, the Establishment Clause of the U.S. Constitution doesn't mean merely what it says (which is just that the government can't set up a state religion) but extends even to government employees saying something that a reasonable person might take to count as endorsement of a particular perspective endorsing or disapproving religion. Add to that the conviction that creationism is religion, and you get this result. This does seem to me to be a direct application of current Supreme Court precedent and the standard view of creationism as religion (which the Supreme Court has endorsed, at least in one instance of the use of the term and a U.S. appeals court has declared to be applicable to intelligent design as well, although that judgment is only legally binding in one of the three federal court districts of Pennsylvania, just as this current decision is only legally binding on one of four federal court districts in California). [For the record, my detailed evaluation of the last case is here.]

Now I don't happen to think this is the right result, for several reasons. For one, the term 'creationism' can mean a lot of different things. It could mean the view that the the Earth is 6,000 years old, more precisely known as young-earth creationism. Some hold this view because they believe scripture teaches it, in which case it counts as a religious belief. Others claim to find it taught by science, in which case their support for it is of the kind that should count as science, even if it's bad science. The Supreme Court has declared that since it is taught in scripture, and science the scientific reasoning being presented is not good science, it can't be of the kind that should count as science. That claim has always seemed wrong to me, and I think this result is exactly what follows when you take such a view. If it's not of a scientific kind, then deriding it as bad science is also not of a scientific nature but of a religious nature (even if it's against a religious view).

But the term 'creationism' can also mean simply that there's a divine being who created. That's often a religious belief. It can also be a philosophical conclusion of arguments that have been present throughout the entire history of Western philosophy and have been held alongside religious beliefs by some but independently of religious beliefs by others. Thomas Aquinas, for example, presented arguments for God's existence that did not rely one bit on any religious beliefs. Lots of thinkers have believed in a creator without thinking they have any religious obligations to that creator. So even that kind of creationism isn't clearly religious, although it often is. Intelligent design arguments fall into this category if they conclude with the belief in a divine creator (rather than a more open conclusion, e.g. merely that there is some designer, which could be aliens if we're talking about biological ID arguments rather than cosmological fine-tuning ID arguments).

When a teacher says that creationism is superstitious nonsense, absent a context, it's not clear what that teacher means. It's certainly not obvious to me that it's a derision of particularly religious elements in any particular one of these things creationism can mean. But I do suspect that most people saying something like this aren't going to be sensitive to any of the distinctions I've just outlined, and they probably do intend to think of creationism as a religious teaching. Given some of the other statements this particular teacher made, I think this is especially likely in this case.


Check out how the justices voted in this Supreme Court decision that was handed down a couple weeks ago. Arizona v. Gant reflects a division on search and seizure rights that doesn't fall on normal lines. Here is oneway of conceiving of the ideological differences on the Supreme Court:

The More Extreme Conservatives: Justices Scalia and Thomas
The More Moderate Conservatives: Chief Justice Roberts and Justice Alito
The Moderate: Justice Kennedy
The More Moderate Liberal: Justice Breyer
The More Extreme Liberals: Justices Stevens, Souter, and Ginsburg

The lineup for this case:

Majority: Justices Stevens, Scalia, Souter, Thomas, and Ginsburg
Dissent: Chief Justice Roberts, Justices Kennedy, Breyer, Alito

That places the more extreme conservatives and more extreme liberals in the majority and those more moderate in the minority.

Note also that this is a 5-4 decision, so don't let it be said that all the 5-4 decisions are the four conservatives vs. the four liberals with Justice Kennedy as the deciding vote. This sort of division is much more common than you might have thought.



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