MORE ON THE LEDBETTER FAIR PAY ACT. Dana beat me to the punch in noting that the Congressional attempt to override Ledbetter passed in the House, but is regrettably doomed. I will add that at the ACS panel I discussed earlier this week, reliable business water-carrier Stuart Taylor poo-poohed the decision by noting that it was just a statutory interpretation case which can be changed by Congress. But, of course, when (as in this case) the will of a majority of members of Congress is trumped by a lame-duck president, there's nothing they can do to check the power of the Court. This is the problem with conflating judicial power with judicial independence; the courts do not have the unconstrained power to narrow the application of civil rights law, but in a Madisionian system they have considerable discretion in many cases to challenge the legislative branch. All of which would be OK except that the Ledbetter decision was illogical. She was still being paid less because of discrimination, and hence the statute of limitations clock should re-start after every individual act of discrimination. Which is why this was the EEOC's standard even during the early years of the Bush administration. Having said that, even if this error cannot be corrected until a Democrat re-takes the White House, it will be good to force Bush to veto the act and to publicly defend the Supreme Court's insulation of employers engaged in rank gender discrimination against the will of Congress. It's also a useful reminder that there's a lot at stake in Supreme Court appointments besides abortion. When it comes to Alito, businesses have gotten exactly what they paid the Republicans for. --Scott Lemieux
