WHY COURT DIVERSITY CAN MATTER.

With respect to Sonia Sotomayor's comments about the subtle relationship between diversity and judging -- judges should strive to be impartial, but obviously cannot step entirely out of their backgrounds and experiences -- Kerry Howley makes two accurate points: 1) they are entirely innocuous, and 2) Sotomayor's comments will be inevitably misrepresented by Senate Republicans if she is nominated by Obama. I would only add that Sotomayor's statements are more obviously true when dealing with appellate judging, when a judge is almost always choosing among multiple plausible interpretations as opposed to trying to determine what "the law" is. A decision handed down today provides a good example of this.

In 1976, The Supreme Court held in GE v. Gilbert (quite absurdly) that pregnancy discrimination by employers "was not a gender-based discrimination at all." Congress responded by overriding the Court's interpretation by passing the Pregnancy Discrimination Act, amending Title VII of the Civil Rights Act to outlaw pregnancy discrimination by employers. Today, the Court held 7-2 that the PDA should not be applied retroactively -- AT&T is permitted to pay lower pension benefits to female employees if they took maternity leave prior to the enactment of the PDA. Souter's opinion presents a plausible way of interpreting the statute, but as Justice Ginsburg notes in her dissent, one more consistent with the Court's current gender discrimination jurisprudence is available:

Today’s case presents a question of time. As the Court comprehends the PDA, even after the effective date of the Act, lower pension benefits perpetually can be paid to women whose pregnancy leaves predated the PDA. As to those women, the Court reasons, the disadvantageous treatment remains as Gilbert declared it to be: “facially nondiscriminatory,” and without “any gender-based discriminatory effect.”

There is another way to read the PDA, one better attuned to Congress’ “unambiguou[s] … disapproval of both the holding and the reasoning” in Gilbert. On this reading, the Act calls for an immediate end to any pretense that classification on the basis of pregnancy can be “facially nondiscriminatory.” While the PDA does not reach back to redress discrimination women encountered before Congress overruled Gilbert, the Act instructs employers forthwith to cease and desist: From and after the PDA’s effective date, classifications treating pregnancy disadvantageously must be recognized, “for all employment-related purposes,” including pension payments, as discriminatory both on their face and in their impact. So comprehended, the PDA requires AT&T to pay Noreen Hulteen and others similarly situated pension benefits untainted by pregnancy-based discrimination.

The issue here, in other words, is in a way similar to Ledbetter. Does paying a woman lower pension benefits than she would otherwise be entitled to constitute ongoing discrimination if the decision was initially made in the past? In addition, Ginsburg also argued that she "would explicitly overrule Gilbert so that the decision can generate no more mischief," which would be salutary, although it's fair to note that stare decisis carries considerably more force in statutory cases. (At least five members of today's majority, it should be noted, haven't been fully consistent about that.)

Do you think it's a coincidence that the only woman on the Court was one of the two dissenters in this case, while two more liberal members (albeit including one Gilbert dissenter) joined the majority? It's unlikely. Does that mean that Ginsburg was somehow subverting the law to her gender? Of course not -- her opinion is a perfectly plausible reading of the statute and is more consistent with its purpose than the majority's reasoning. It would benefit the court to have have a gender balance closer to that which pertains in the nation (not to mention the nation's law schools).

--Scott Lemieux