Justice Scalia

More Biased Press Coverage of the Supreme Court and Its Ledbetter Decision

by Hans Bader on December 6, 2009

in Legal, Personal Liberty, Politics as Usual, Sanctimony

Press coverage of the Supreme Court is sometimes marred by ideological bias.  Liberal court reporters sometimes distort what Supreme Court justices say, or the facts of Supreme Court rulings, in order to make justices look bad.  One example is the blatantly false claim by an Arizona reporter that Justice Scalia criticized court desegregation rulings (a claim the reporter belatedly admitted was false).

Another is the extremely inaccurate press coverage of the Supreme Court’s 2007 decision in Ledbetter v. Goodyear. The New York Times has peddled fables about that decision that persist in the media despite being debunked by journalists like James Taranto, legal scholars like David Copus, legal commentators like Stuart Taylor of the National Journal, and lawyers like Paul Mirengoff.

Plaintiff Lilly Ledbetter lost her pay discrimination case because she filed her complaint to the Equal Employment Opportunity Commission (EEOC) too late. The Court said that, in most cases, employees should file an EEOC complaint within 180 days of their first discriminatory paycheck, if they want to sue under Title VII of the Civil Rights Act.

But the Court also specifically left open the possibility that employees could sue later simply because they didn’t know of the discrimination at the time — a situation it said did not apply to Ledbetter’s case (she testified in her deposition that she knew of the pay disparity in 1992, but only filed her complaint with the EEOC in 1998, around the time she retired). The Court pointedly noted that the plaintiff could have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing. (Moreover, as lawyer Paul Mirengoff notes, the Supreme Court has long allowed hoodwinked employees to rely on equitable tolling, waiver, and estoppel to sue beyond the deadline, when employer deception keeps them from suing within 180 days, as it made clear in its Zipes decision).

But newspapers like The New York Times did not report any of this. Instead, Times reporters like Linda Greenhouse caricatured the Supreme Court’s decision, falsely claiming Ledbetter never knew of the pay disparity until she retired, and that the Supreme Court created a rigid rule that employees must always sue within 180 days of their first discriminatory paycheck, regardless of whether they knew or could have known of the pay disparity.

As Stuart Taylor notes, this false claim ended up in literally “hundreds of media reports.” But it was completely untrue. As Taylor notes:

Ledbetter admitted in her sworn deposition that “different people that I worked for along the way had always told me that my pay was extremely low” compared to her peers. She testified specifically that a superior had told her in 1992 that her pay was lower than that of other area managers, and that she had learned the amount of the difference by 1994 or 1995. She added that she had told her supervisor in 1995 that “I needed to earn an increase in pay” because “I wanted to get in line with where my peers were, because… at that time I knew definitely that they were all making a thousand [dollars] at least more per month than I was.”

When The Tampa Tribune inadvertently repeated this fable — that Ledbetter never knew of the pay disparity she sued over until she retired, and that the Supreme Court threw out her claim solely because her complaint was not within 180 days of her first paycheck — it eventually corrected its error, at least in the online version.

Originally, the Tribune story, entitled “Equal pay crusader says she’ll always be ‘second-class citizen,’” wrote that the Court’s “majority said that by law she should have filed her case earlier — within 180 days of her first paycheck. It failed to recognize Ledbetter didn’t know about the pay discrepancy until just before she retired in the late 1990s.” Now, it has corrected that paragraph to more accurately read:

The majority said that by law, she should have filed her case within 180 days of her first paycheck – or at least 180 days after she learned of the pay discrepancy. Ledbetter retired from Goodyear in the late 1990s, after 20 years with the company. She learned of the pay discrepancy before she retired, but more than 180 days passed before she filed her case.

By contrast, The New York Times‘s staff not only refused to correct its erroneous reporting, but also refused even to read the portions of the Supreme Court’s Ledbetter decision (like footnote 10) that proved my point about its inaccurate reporting, choosing instead to rely on Ledbetter’s self-serving, unsubstantiated claims to Congress contradicting the Supreme Court. The Times chose instead to claim that Ledbetter never knew of the discrimination until around the time she retired, and that the Supreme Court threw out Ledbetter’s claim regardless of whether she knew or could have known of the discrimination, simply because she did not complain within 180 days of her first paycheck.

But the Supreme Court did not create any such rigid deadline, and expressly left open the possibility that plaintiffs can wait to sue until after learning of discrimination, under the so-called “discovery rule.” It noted in footnote 10 of its opinion:

[W]we have previously declined to address whether Title VII suits are amenable to a discovery rule. . . .Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.

In short, since Ledbetter didn’t even claim that a lack of knowledge had prevented her from suing in time, relaxing the deadline for her would have done her no good. (Moreover, if she had lacked knowledge as a result of being hoodwinked by her employer, she could have had the deadline extended under the Supreme Court’s doctrine of equitable tolling, which applies somewhat more narrowly than the discovery rule).

After she lost her case, Ledbetter claimed to Congress that she had not learned of the discrimination until the end of her career — a claim parroted by gullible politicians and the press. But in Ledbetter’s deposition, she admitted she knew by 1992 – years earlier — that she was paid less than her male peers, notes David Copus in page 8 of the online version of his October 2008 law journal article “Pay Discrimination Claims After Ledbetter.” Similarly, Washington lawyer Paul Mirengoff notes that:

Ledbetter testified that she knew by 1992 that her pay was out of line with her peers. In 1995, she spoke to her supervisor about the problem, telling him that “I knew definitely that they were all making a thousand at least more per month than I was and that I would like to get in line.” Yet Ledbetter waited until 1998 to file her EEOC complaint.

Moreover, although the Supreme Court dismissed Ledbetter’s claim under Title VII, the discrimination law with the shortest deadline, it pointed out that the plaintiff could easily have pressed her claim instead under the Equal Pay Act, which has a longer deadline for suing. As it noted, “Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII.” She might have won her case had she simply appealed based on the Equal Pay Act.

False Claim About Justice Scalia from Liberal Reporter: No, He Didn’t Say He Would Have Voted to Uphold Segregation

by Hans Bader on October 27, 2009

in Employment, Labor, Legal, Personal Liberty, Politics as Usual, Sanctimony

Liberals are busy sending each other twitters falsely claiming that Justice Antonin Scalia, one of the more conservative members of the Supreme Court, said that he would have voted to uphold school segregation in Brown v. Board of Education (1954).

There’s just one problem: he never said any such thing. He said the very opposite!

A liberal reporter for Capitol Media Services, Howard Fischer, made the claim that Scalia said he would have voted to uphold segregation, in a story carried in the East Valley Tribune. But as even liberal law professor Jack Balkin, who was initially fooled by the story, now admits, it’s pure bunk: a video recording of the event shows that Scalia actually said he would have voted to strike down segregation.

Before the error was uncovered, the story circulated all around the internet, including at CQ Politics’ Political Wire, and as a result, we can expect to see the false claim repeated for weeks in the press. (Political Wire, for example, contains a commentary by Taegan Doddard entitled, “Scalia Would Have Voted to Keep School Segregation.”)

This sort of reporting is typical for liberal court reporters, who routinely make false claims that make conservatives or businesses look bad or politically-correct constituencies look good. A classic example is the Ledbetter v. Goodyear decision, which Linda Greenhouse of the New York Times deliberately distorted to make it seem like the Supreme Court had created a rule that discrimination plaintiffs have to sue even before they could have learned about pay discrimination. (In fact, the plaintiff in the Ledbetter case had known of the pay disparity she later claimed was discriminatory for at least 5 years before complaining to the EEOC. By distorting the facts of the case, and what the Supreme Court actually held, the press also created a political weapon for the Obama campaign to use against McCain in the 2008 campaign.)

Another example is the Duke Lacrosse case, where the prosecutor was later jailed for misconduct for pressing a baseless interracial rape case against innocent Lacrosse players. DNA evidence proved the players were innocent, and North Carolina’s attorney general admitted that they were in fact innocent. But the New York Times’ Duff Wilson claimed that a substantial “body of evidence” pointed to the defendants’ guilt.

CBS News legal “analyst” Andrew Cohen repeatedly denounced the Duke lacrosse players, calling for the gagging of their attorneys. At a time when few journalists dared question the rape claim for fear of being seen as politically incorrect, Cohen absurdly claimed that the media had rushed to the “defense” of the players and that “there is no balanced coverage in the Duke case. There is just one defense-themed story after another.” He demanded for prosecutor Mike Nifong “the privilege of seeing the case unfold at trial” against the players, rather than dropping the prosecution.

Sadly, both Wilson and Cohen still have their jobs, suggesting that liberal bias is viewed as a plus when it comes to employment with the “mainstream” media. (Cohen’s “evidence-free” commentaries denouncing Justice Scalia are a self-parody of left-wing bias.)

I don’t agree with Justice Scalia on everything. (See my law journal article criticizing the ruling he and the “conservative” justices issued in Morse v. Frederick.)  But the liberal bias of Supreme Court press coverage is obvious to me.

UPDATE, Oct. 27, 4:12 p.m.: the reporter who made the false claim about Scalia (Howard Fischer) has now deleted his claim that Scalia would uphold segregation from his story, tacitly admitting that he was wrong.  But he did not disclose the error in his original story for readers.  As a commenter to his story, jayr23, notes

“Sorry Scalia. I disagree with you in general but it looks like you were terribly misquoted here. The only hack is the reporter.

Mr. Fischer should probably correct this and then apologize.

BTW, a correction is not simply a deletion of the offending material! Sheesh. Journalism has sunk to an all time low.”

SECOND UPDATE, Oct. 27, 6:22 p.m.: The erroneous story’s internet version has now been revised to contain a vague reference to its error, in a passage that reads:

“Editor’s note: This is an updated version of a story that was originally posted Oct. 26. It removes an incorrect reference to Brown v. Board of Education in the initial version.”

Mass v. EPA’s legacy of “absurd results”

by Marlo Lewis on October 9, 2009 · 1 comment

in Global Warming, Legal

Last week I posted several excerpts from EPA’s “Tailoring Rule,” which confirm that the Supreme Court, in Massachusetts v. EPA (April 2007), set the stage for an economically ruinous administrative quagmire.

To reiterate:

  • EPA, in response to Mass v. EPA, proposes to establish greenhouse gas (GHG) emission standards for new motor vehicles.
  • Once those standards are adopted, carbon dioxide (CO2) automatically becomes a “pollutant subject to regulation” under the Clean Air Act’s Prevention of Significant Deterioration (PSD) pre-construction permitting program and Title V operating permits program.
  • A firm must obtain a PSD permit in order to build or modify a “major emitting facility” defined as a source with a potential to emit 100 tons per year (tpy) of a regulated pollutant (if the facility is in one of 28 listed industrial categories) or 250 tpy (if the facility is any other type of establishment).
  • A firm must obtain a Title V permit in order to operate a “major emitting facility” defined as a source with the potential to emit 100 tpy of a regulated pollutant.
  • An estimated 1.2 million buildings and facilities — big box stores, office buildings, enclosed malls, even commercial kitchens — actually emit 250 tpy of CO2. Millions more have a potential to emit 100 tpy of CO2.
  • EPA and state environmental agencies currently process approximately 280 PSD permits and 14,700 Title V permits annually.
  • EPA estimates that permitting agencies would have to process 41,000 PSD permits and 6.1 million Title V permits annually for CO2 sources meeting the statutory definitions of “major emitting facility.”
  • The enormous volume of permit applications would “immediately and completely overwhelm” EPA and its state counterparts, bringing the permitting process — and much economic activity along with it — to a screeching halt. 

In the Tailoring Rule, EPA proposes to suspend, over a six-year period, the PSD and Title V requirements for GHG sources emitting less than 25,000 tpy, on a CO2-equivalent basis. During the next five-years EPA will develop “streamlining” options enabling smaller and smaller sources to comply without going broke (we hope — currently the average PSD permit costs $125,120 and 866 burden-hours for a source to obtain). Oh yes, let me guess, EPA will also lobby Congress for exponential increases in staff and other “administrative resources.”

Although EPA does not put it this way, the Agency is proposing to amend the Clean Air Act. EPA invokes the judicial doctrines of  ”absurd results” and “administrative necessity” to justify this assertion (usurpation?) of legislative power.

In a later post, I may analyze the cases EPA cites to defend its proposal to flout clear and unambiguous statutory language. In today’s post, I simply want to excerpt passages from the Tailoring Rule showing how regulation of CO2 under the Clean Air Act as written, rather than as re-imagined, leads to absurd results — that is, produces insoluble conflicts between provisions of the Clean Air Act and generates outcomes contrary to congressional intent.

The gist of these excerpts is as follows. When Congress enacted the PSD and Title V provisions, it did not intend to create a paralyzing administrative quagmire. That, however, is what we’ll get if permitting agencies apply the PSD and Title V provisions as written to CO2. Sources that Congress never wanted EPA to regulate would be regulated, while others that Congress did want EPA to regulate would not be, due to the immense backlogs. The administrative morass would also create an enormous roadblock to economic development. Yet Congress wanted the Clean Air Act to enhance the nation’s productivity.

PSD

  • CAA section 165(c) is particularly important in this regard. It requires that the permitting authority grant or deny “[a]ny completed permit application for a major emitting facility . . . not later than one year after the date of filing of such application.” A literal interpretation of CAA sections 165(a)(1) and 169(1) to apply at the 100/250 tpy levels would render compliance with this provision impossible by requiring far more permit applications than permitting authorities could process under the 12-month deadline … [p. 88]
  • A literal interpretation of CAA sections 165(a)(1) and 169(1) to apply at the 100/250 tpy level would also be directly inconsistent with the PSD-purpose in CAA section 160, in particular, section 160(3), which is “to insure that economic growth will occur in a manner consistent with the preservation of existing clean air resources” . . . Because PSD is a preconstruction requirement, increasing permitting authorities’ workload from 300 to 41,000 permits would severely undermine this purpose of facilitating economic growth . . . Each year, many thousands of sources would face multi-year delays in receiving their permits, and as a result, for all practical purposes, they would be forced to place on hold their plans to construct or modify. [p. 89]
  • . . . a literal application of the applicability provisions would lead to results that are diametrically inconsistent with Congress’s expressed intent . . . Congress was focused on sources of criteria pollutants — primarily sulfur dioxide (SO2), particulate matter, nitrogen oxides (NOx), and carbon monoxide (CO) — and not GHG emissions. This focus stems from the basic purpose of the PSD program, which is to safeguard maintenance of the NAAQS [national ambient air quality standards], combined with the limited awareness at the time of the problem of climate change. [p. 90]
  • Congress designed the PSD provisions to impose significant regulatory requirements, on a source-by-source basis, to identify and implement BACT [best available control technologies] . . . Congress was well aware that because these requirements are individualized to the source, they are expensive. Accordingly, Congress designed the applicability provisions to apply these requirements to industrial sources of a certain type and size . . . Congress’s limitation of PSD to larger sources was quite deliberate, and was based on its determination to limit the costs that PSD permitting entails to larger sources in certain industries . . . ”facilities, which due to their size, are financially able to bear the substantial regulatory costs imposed by the PSD provisions and which, as a group, are primarily responsible for emissions of the deleterious pollutants that befoul the nation’s air” [quoting Alabama Power v. Costle; pp. 90-91]
  • However, applying the 100/250 tpy threshold literally to CO2 emissions would frustrate congressional intent by subjecting to PSD sources that Congress specifically intended not to include. [p. 95]
  • . . . the extraordinary number of sources subject to PSD would preclude the permitting authorities from processing permit applications for all sources, including those Congress intended to subject to PSD. Because PSD is a preconstruction program, those sources would face many years of delay before they could construct or modify, which would undermine congressional [intent] to allow economic growth in PSD areas. [p. 100]

Title V

  • . . .a literal application of the 100 tpy threshold requirement in CAA sections 502(a), 501(2)(B), and 302(j) would be in tensions with a specific CAA requirement, that of CAA section 503(c), which imposes a time limit of 18 months from the date of receipt of the completed permit application for the permitting authority to issue or deny the permit. It would be flatly impossible for permitting authorities to meet this statutory requirement if their workload increases from 14,000 permits to 6.1 million. [p. 101]
  • As noted elsewhere, Congress intended through Title V to facilitate compliance [with other Clean Air Act requirements] by establishing an operating permit program that requires the source to combine in a single permit all of its CAA requirements. [p. 101] [However] . . . the great majority of these [6.1 million] sources will not be subject to any CAA requirements, so that although they would need to apply for and receive a permit, there would be no applicable requirements to include in the permit and the exercise would not improve compliance. [p. 103]
  • Thus, as with PSD, a literal interpretation of the Title V threshold provisions would apply Title V to millions of sources that Congress did not intend be covered, and the ensuing administrative burdens — at least initially — would impede the issuance of permits to the thousands of sources that Congress did intend be covered. [p. 104]

What would be funny about all of this, if the threat to our economic and constitutional system of separation of powers did not loom so large, is the spectacle of EPA carefully tip-toeing around the real source of the absurd results: Mass. v. EPA.

It’s not only the case that Congress did not intend to apply PSD and Title V to small entities. Congress never intended for EPA to control CO2 emissions under the Clean Air Act!

The one limited exception (which occurred after Mass v. EPA was decided) is the renewable fuel standard (RFS) established by the 2007 Energy Independence and Security Act (EISA). The RFS mandates the sale of renewable fuels, which must achieve specified percentage reductions in GHG emissions, based on a life-cycle analysis, compared to petroleum-based fuels. However, section 210(b)(12) of EISA makes clear that the RFS does not establish precedent for any additional regulation of CO2 under any other provision of the Clean Air Act:

Nothing in this subsection, or regulations issued pursuant to this subsection, shall affect or be construed to affect the regulatory status of carbon dioxide or any other greenhouse gas, for purposes of other provisions (including section 165 [i.e., the PSD program] of this Act [i.e., the Clean Air Act].  

Conclusion

EPA writes as if Congress, when it enacted or amended the Clean Air Act, somehow inserted malicious code — the regulatory equivalent of a computer virus — into the text of the statute. This self-destruct program, we are to suppose, was lurking in there all this time. Then all of a sudden, the dormant bug became active, and now the Clean Air Act is going haywire, working at cross purposes with itself, subverting congressional intent, and imperiling the nation’s economic future. Therefore, EPA must step in, play lawmaker, and amend the Act.

And if you believe any of that, dear reader, I’ve got a bridge to sell you!

As I said in my earlier post, when a court decision leads to absurd results, there are only two possibilities. Either (1) the absurdity was embedded in the statute from the beginning, and the court just brought it to light. Or (2) the court manufactured the absurdity by mis-reading of the statute.

The absurdities EPA’s Tailoring Rule describes exists only by virtue of the Massachusetts Court’s agenda-driven decision. The real issue in Mass. v. EPA, which the Court never addressed, was whether Congress, when it enacted and amended the provision in dispute — section 202 of the Clean Air Act — in 1970 and 1977, intended for EPA to apply the Act as a whole, including PSD and Title V and the NAAQS program, to carbon dioxide for global warming purposes. To ask this question is to answer it.

Moreover, as I explain in my comment (pp. 28-23) on EPA’s endangerment proposal, the Court’s entire argument rests on a tortured reading of the Clean Air Act definition of ”air pollutant,” in section 302(g).

Here’s the semantic game the Court majority employed to empower EPA to Kyotoize the U.S. economy: (i) The EPA has authority to regulate air pollutants; (ii) an “air pollutant” is anything “emitted” into or otherwise entering the air; (iii) carbon dioxide is emitted; ergo (iv), EPA has authority to implement regulatory climate policy.

The lynchpin of the argument is step (ii). Justice Scalia quipped that under the majority’s reading of 302(g), anything airborne, “from Frisbees to flatulence,” qualifies as an air pollutant. It’s actually worse than that. On the majority’s reading, even totally clean air, air that is 100% pollution-free, is an “air pollutant” if it is “emitted” into or otherwise enters the ambient air. That is absurd. From absurd premises come absurd results.