Commentary Magazine


“Fair” — Time for the Obama Court to Spread the Wealth

Barack Obama gave a revealing and perfectly awful answer regarding the role of the Supreme Court in Wednesday’s debate:

I will look for those judges who have an outstanding judicial record, who have the intellect, and who hopefully have a sense of what real-world folks are going through. I’ll just give you one quick example. Senator McCain and I disagreed recently when the Supreme Court made it more difficult for a woman named Lilly Ledbetter to press her claim for pay discrimination. For years, she had been getting paid less than a man had been paid for doing the exact same job. And when she brought a suit, saying equal pay for equal work, the judges said, well, you know, it’s taken you too long to bring this lawsuit, even though she didn’t know about it until fairly recently. We tried to overturn it in the Senate. I supported that effort to provide better guidance to the courts; John McCain opposed it. I think that it’s important for judges to understand that if a woman is out there trying to raise a family, trying to support her family, and is being treated unfairly, then the court has to stand up, if nobody else will. And that’s the kind of judge that I want.

Let’s count up the things that are wrong with this. First, judges aren’t supposed to consider the economic, social or political status of litigants. In fact, they take an oath not to. (“I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me . . . ) It is irrelevant whether the plaintiff was a working stiff, a struggling mom, or an heiress. This was a case of statutory interpretation under the Equal Pay Act. Extending special consideration based on her personal life story would be entirely inappropriate.

Second, the system of separation of powers and the restricted role of the judiciary worked precisely as it should have here. The Court interpreted a statute and found that Congress hadn’t intended for an open-ended statute of limitations to allow equal pay claims to remain open indefinitely. Once the Court ruled, Congress had the ability to come back and amend the statute to explicitly put out the welcome mat for the plaintiff’s bar. They haven’t. And that is now an issue in the presidential election, where once again voters can decide as a policy matter whether they agree with Barack Obama or John McCain. What’s wrong with this?

Finally, if you want to talk “fair,” there are lots of claims for fairness at issue here — small businesses, payroll clerks, employees, shareholders, etc. The Supreme Court is not in the fairness business, with the responsibility to select this or that applicant who comes before it with the most compelling sob story. The Court is in the legislative and Constitutional interpretation business. Invoking “fairness” is an intellectual dodge. What Obama really means, I suspect, is “override the elected branches to give money to the person five of nine lifetime appointees decide is most deserving.” But that sounds downright undemocratic and quite presumptuous. “Fairness” sounds so much better.

In short, this should remove any doubt you might have as to whether Obama views the Court as another cauldron for social engineering and re-distribution of wealth. That’s what “fair” is, right? (Give the money from the company which can’t dig out 20 year-old pay records to the single mom.) Perhaps McCain should start talking more about judges. There has to be a Joe the Lawyer out there to help him.