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You Ain’t Seen Nothin’ Yet

Probably too much was made of the Oof! of Office misadministered by Chief Justice John Roberts to finally-President Barack Obama last week. We might learn something from the Justice’s error, though.

The likely cause of the mistake was identified, and properly pilloried, by the Harvard psychologist and linguist Steven Pinker in an op-ed piece that ran in the NY Times: Roberts attempted to rewrite the oath to conform to his own pedantic — but incorrect — ideas of proper grammar. (As a sometimes-pedant myself, I have learned painful lessons about the importance of actually being right.)

Likely because of his extensive study of Latin during his Catholic school boyhood, Roberts likely subscribes to the “rule” against splitting infinitives; this is no rule at all, but a slavish import from Latin where infinitives can’t be split, because they consist of only one word. Thus did Roberts place the word “faithfully” at the end of a sentence that should have had the President “solemnly swear that I will faithfully execute the office of president of the United States.” Instead, the Chief Pedant wanted him to “solemnly swear that [he would] execute the office of president to the United States faithfully.”

This was a change up with which the almost-President would not put (to follow another silly “rule” about not ending a sentence with a preposition). Obama stopped, gave the Justice a chance to correct himself, and then they moved on.

Can’t I just move on, too? OK, in a minute. First, I want to suggest that the adherence to rules that don’t make a lot of sense can be dangerous when applied to the business of judging. Pinker reminded me that Roberts had also “amended” a Bob Dylan quote to remove an “ain’t”; as a kid, I remember chanting that “I ain’t gonna use ‘ain’t’, cause it ain’t in the dictionary.” Whatever meta-statement the previous sentence may or may not make, here’s a rule that I think we can all agree on: If you’re trying to show off your pop culture chops, editing Bob Dylan subverts your goal.

Lily Ledbetter, too, probably wishes that Roberts and his fellow conservative justices had less of an adherence to silly rules. In a 5-4 opinion onto which Roberts signed (now I can’t stop myself!), the Supreme Court ruled that Ms. Ledbetter’s sex discrimination lawsuit against Goodyear, based on unequal pay, was time-barred because she had failed to sue within the 180-days the law required. Ms. Ledbetter had worked for the company for some twenty years before realizing that her pay was substantially lower than that of every male in the same position, many of whom had far less seniority than she. Pay discrimination is often insidious and invisible, accruing over many years before the disparity becomes evident (and not disclosed by the employer, certainly).

No matter: Going against the majority of federal appellate courts and even the EEOC’s own view, the Court ignored this reality and found her claim time-barred. Thus, the factual finding that she was the victim of discrimination, meant nothing.

In dissent, Justice Ginsburg had this to say: “The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to “protec[t] employers from the burden of defending claims arising from employment decisions that are long past.” [B]ut the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm.”

In fairness, the law in question could have been read either way. But only one reading was consistent with the remedial idea of the federal law. Because of the majority’s decision, Lily Ledbetter, who lost many thousands of dollars over the years, had no remedy.

Thus was Ms. Ledbetter cheered when the newly installed Democratic Congress passed a bill bearing her name, amending the statute to allow suits like hers. The bill passed the Senate last week, 61-36, with all four female Republican Senators (and the usually reliable Arlen Specter) joining a unanimous Democratic caucus. The House, which has passed a similar version of the bill, is expected to take it up tomorrow — on John Roberts’ fifty-fourth birthday. And the Lily Ledbetter Fair Pay Act of 2009 is expected to be the first bill that President Obama signs.

That’s two quick corrections to Justice Roberts’ actions. “You have not yet seen a thing,” to correct the woefully ungrammatical title of Bachman-Turner Overdrive’s 1974 hit (and for “uncool,” it’s hard to surpass that reference).

  1. Brian Cahill
    April 2nd, 2009 at 16:33 | #1

    “I ain’t gonna use ‘ain’t’, cause it ain’t in the dictionary.”

    Almost, Master Jedi, but you missed an “ain’t”. Should be “…cause ain’t ain’t in the dictionary.”, at least according to my sketchy memory.

    I got more out of this post than that, but have nothing more to add except “you need educatin'”!

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