Assignment InstructionsWe have discussed ongoing changes in major social institutions affecting work, society, and the quality of life. By “institutions” we mean organized systems like governments, businesses, and unions. But all of these are driven and shaped in the end by groups of people organizing around their dissatisfaction with the status quo. We refer to these forms of collective action as social or political movements. Social movements are the force that makes real social change. They are hard to predict or understand: they come and go, rise and fall back unexpectedly. They can be “conservative,” defending an old way of life, or “progressive,” advocating a new vision of society. They can also be simply chaotic. In the 19th and 20th centuries social scientists focused largely on class-based movements in which workers and the poor organized against employers and/or the government. There are growing questions now about whether class is the most powerful organizing force. Some write about “new social movements” centered on social identities like race, gender or ethnicity. Read:Guiner, Lani. Beyond Legislatures: Social Movements, Social Change, and the Possibilities of Demosprudence.Asker the following Questions :Describe an example of “demosprudence” in the United States or another society. What group initially expressed dissatisfaction with the status quo, and what actions did it take to expand the audience for their movement?In your ideal democracy, who would be responsible for ensuring that laws reflect society’s contemporary notions of justice or fairness? Explain your reasoning, and identify what roles “institutions” and “social movements” would play.I have written my the requirements in the “objective ” documents, please read it carefully
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SOCIAL MOVEMENTS, SOCIAL
CHANGE, AND THE POSSIBILITIES
COURTING THE PEOPLE:
DEMOSPRUDENCE AND THE LAW/POLITICS DIVIDE
America’s first black President signed his first major piece of legislation on
January 29, 2009: the Lilly Ledbetter Fair Pay Act.1 Since the Act carried
Lilly Ledbetter’s name, she fittingly stood beaming by President Obama’s side
during the signing ceremony.2 For nineteen years, however, this seventy-yearold grandmother had less reason to be joyful, working in supervisory bluecollar jobs in a Goodyear Tire and Rubber Plant in Gadsden, Alabama earning
fifteen to forty percent less than her male counterparts. This pay gap, which
resulted from receiving smaller raises than the men, “added up and multiplied”
over the years.3 But Ledbetter did not discover the disparity until she was
nearing retirement and “only started to get hard evidence of discrimination
when someone anonymously left a piece of paper” in her mailbox listing the
salaries of the men who held the same job.4 Ledbetter sued and a federal jury
awarded her $223,776 in back pay and more than $3 million in punitive
Bennett Boskey Professor of Law, Harvard Law School. I thank Niko Bowie, Tomiko
Brown-Nagin, Richard Chen, Andrew Crespo, Jean-Claude Croizet, Christian Davenport,
Pam Karlan, Jennifer Lane, Jane Mansbridge, Martha Minow, Janet Moran, Robert Post and
Gerald Torres for their invaluable contributions to this Essay.
1 Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5.
See Richard Leiby, A Signature with the First Lady’s Hand in It, WASH. POST, Jan. 29,
2009, at C1 (“It seemed to be all about Lilly Ledbetter at the White House yesterday – her
name was enshrined in history, affixed to the first piece of legislation signed by President
3 Justice Denied? The Implications of the Supreme Court’s Ledbetter v. Goodyear
Employment Discrimination Decision: Hearing Before the H. Comm. on Educ. & Labor,
110th Cong. 10 (2007) [hereinafter Hearing] (statement of Lilly Ledbetter); see also Lilly
Ledbetter, Address to the Democratic National Convention (Aug. 26, 2008) [hereinafter
Ledbetter, Address], http://www.demconvention.com/lily-ledbetter/.
4 Hearing, supra note 3, at 10. Ledbetter’s salary was $3,727 a month. The salary of the
lowest paid man, with far less seniority, was $4,286. Id. at 12.
BOSTON UNIVERSITY LAW REVIEW
damages, finding that it was “more likely than not that [Goodyear] paid
[Ledbetter] a[n] unequal salary because of her sex.”5 The Supreme Court
nullified that verdict. The five-Justice majority held that Ledbetter waived her
right to sue by failing to file her complaint within 180 days of the first act of
discrimination.6 In Ledbetter’s words, the Court “sided with big business.
They said I should have filed my complaint within six months of Goodyear’s
first decision to pay me less, even though I didn’t know that’s what they were
doing.”7 By contrast, the Lilly Ledbetter Fair Pay Act sided with ordinary,
working women across the nation.
Justice Ruth Bader Ginsburg, on behalf of herself and three colleagues,
dissented from the Court’s May 2007 decision.8 A leading litigator and
advocate for women’s equality before taking her seat on the Court,9 Justice
Ginsburg read her dissent aloud from the bench – an act that, in her own
words, reflects “more than ordinary disagreement.”10 Her oral dissent, which
made the front page of the Washington Post,11 signaled that something had
gone “egregiously wrong.”12 In a stinging rebuke to the Court majority, she
used the personal pronoun, speaking not to her colleagues but directly to the
other “you’s” in her audience – women who, despite suspecting something
5 Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2178 (2007) (Ginsburg, J.,
dissenting) (quoting record from below), superseded by statute, Lilly Ledbetter Fair Pay Act
of 2009, Pub L. No. 111-2, 123 Stat. 5.
6 Id. at 2165 (majority opinion).
7 Ledbetter, Address, supra note 3; see also Hearing, supra note 3, at 10.
8 Ledbetter, 127 S. Ct. at 2178 (Ginsburg, J., dissenting).
9 In an interview with the ACLU, Ginsburg’s co-counsel described the first case
Ginsburg argued before the Court: “I’ve never heard an oral argument as unbelievably
cogent as hers. . . . Not a single Justice asked a single question; I think they were
mesmerized by her.” Tribute: The Legacy of Ruth Bader Ginsburg & WRP Staff, AM. CIVIL
10 Justice Ruth Bader Ginsburg, The 20th Annual Leo and Berry Eizenstat Memorial
Lecture: The Role of Dissenting Opinions (Oct. 21, 2007) [hereinafter Ginsburg, Eizenstat
11 Robert Barnes, Over Ginsburg’s Dissent, Court Limits Bias Suits, WASH. POST, May
30, 2007, at A1 (“Speaking for the three other dissenting justices, Ginsburg’s voice was as
precise and emotionless as if she were reading a banking decision, but the words were
stinging.”). Barnes noted that Justice Ginsburg’s oral dissent was a “usually rare practice
that she has now employed twice in the past six weeks to criticize the majority for opinions
that she said undermine women’s rights.” Id.
12 Ruth Bader Ginsburg, Celebration Fifty-Five: A Public Conversation Between Dean
Elena Kagan ’86 and Justice Ruth Bader Ginsburg ’56-’58 at the Harvard Law School
Women’s Leadership Summit (Sept. 20, 2008) (from notes taken by and on file with author)
[hereinafter Ginsburg, Leadership Summit]; see also Ginsburg, Eizenstat Lecture, supra
note 10 (“A dissent presented orally . . . garners immediate attention. It signals that, in the
dissenters’ view, the Court’s opinion is not just wrong, but importantly and grievously
COURTING THE PEOPLE
askew in their own jobs, were reluctant to rock the boat as the only women in
Indeed initially you may not know the men are receiving more for
substantially similar work. . . . If you sue only when the pay disparity
becomes steady and large enough to enable you to mount a winnable
case, you will be cut off at the Court’s threshold for suing too late.13
Justice Ginsburg’s dissent reflected an acute sense, missing from the majority’s
opinion, of the circumstances surrounding women in male-dominated
workplaces. In a job previously filled only by men, women “understandably
may be anxious to avoid making waves.”14
Justice Ginsburg was courting the people.15 Her oral dissent and subsequent
remarks hinted at a democratizing form of judicial speech that, were it heard,
could be easily understood by those outside the courtroom.16 By speaking
colloquially – using the personal pronoun “you” to address her audience –
Justice Ginsburg signaled to ordinary women that the majority should not have
the last word on the meaning of pay discrimination. Her goal was to engage an
external audience in a conversation about our country’s commitment to equal
pay for equal work.17
While Justice Ginsburg spoke frankly to and about the Lilly Ledbetters of
the world, her real target was the legislature. Appalled by the Court’s
“cramped interpretation” of a congressional statute to justify its decision
nullifying the favorable jury verdict, Justice Ginsburg explicitly stated that the
“ball again lies in Congress’s court.”18 During a public conversation in
September 2008, then-Harvard Law School Dean Elena Kagan asked Justice
Ginsburg to describe her intended audience in Ledbetter. Ginsburg replied:
13 Oral Dissent of Justice Ginsburg at 4:25, Ledbetter, 127 S. Ct. 2162 (No. 05-1074),
available at http://www.oyez.org/cases/2000-2009/2006/2006_05_1074/opinion; see also
Lani Guinier, The Supreme Court, 2007 Term – Foreword: Demosprudence Through
Dissent, 122 HARV. L. REV. 4, 40-41 (2008).
14 Oral Dissent of Justice Ginsburg, supra note 13, at 8:30-8:37; see also Guinier, supra
note 13, at 41.
15 By “courting” I mean enlisting or inspiring rather than wooing or currying favor with.
16 Guinier, supra note 13, at 40.
17 Cf. Timothy R. Johnson, Ryan C. Black & Eve M. Ringsmuth, Hear Me Roar: What
Provokes Supreme Court Justices to Dissent from the Bench?, 92 MINN. L. REV.
that Supreme Court Justices use their oral dissents strategically to signal strong
disagreement as well as the need for action by third parties to change the majority decision).
As was her practice, Justice Ginsburg handed out her bench announcement right after the
delivery of her oral dissent. Her press-release-style opening paragraphs in her opinions are
intended to help reporters under tight deadlines get it right.
18 Oral Dissent of Justice Ginsburg, supra note 13, at 10:17-10:58; see also Guinier,
supra note 13, at 41 n.179.
BOSTON UNIVERSITY LAW REVIEW
“[I]t was Congress. Speaking to Congress, I said, ‘you did not mean what the
Court said. So fix it.’”19
Democrats in Congress responded quickly. Initially called the Fair Pay
Restoration Act, the House-passed bill would have eliminated the Courtsanctioned time limit.20 That bill, however, died in the Senate, where
Republicans – including John McCain – publicly denounced it as antibusiness.21
As the initial Fair Pay Restoration Act languished in Congress, Lilly
Ledbetter emerged as a real presence in the 2008 election campaign.22 Despite
her initial misgivings about partisan campaigning, she was infuriated by John
McCain’s refusal to support a congressional fix. She cut an ad23 for Barack
Obama that had a “stratospheric effect” when poll-tested by Fox News’s
political consultant Frank Luntz.24 In August 2008, Ledbetter was a featured
speaker at the Democratic National Convention in Denver.25 There, as well as
in her testimony before Congress, she acknowledged the significance of Justice
Ginsburg’s dissent both in affirming her concerns and directing attention to a
In her testimony before Congress, for example, Ledbetter echoed Justice
Ginsburg’s emphasis on the isolation many women feel when they first
integrate the workplace.27 Both Ledbetter and Justice Ginsburg used the
pronoun “you” to speak directly to other women. At the same time that
Ledbetter’s story animated Justice Ginsburg’s dissent, Justice Ginsburg’s
dissent amplified Ledbetter’s own voice. Suitably emboldened, this Alabama
Ginsburg, Leadership Summit, supra note 12.
H.R. 2831, 110th Cong. (2007).
21 The initial bill passed the House in July 2007, but never came up for a vote in the
GovTrack, H.R. 2831: Lilly Ledbetter Fair Pay Act of 2007,
http://www.govtrack.us/congress/bill.xpd?bill=h110-2831 (last visited Mar. 17, 2009); see
also Carl Hulse, Republican Senators Block Pay Discrimination Measure, N.Y. TIMES, Apr.
24, 2008, at A22.
22 Morning Edition: Fair Pay Law Strikes a Blow for Equal Pay at 4:12 (National Public
Ledbetter’s prominent role and reporting that Ledbetter’s husband, a retired National Guard
Sergeant Major, voted for a Democratic President for the first time in fifty years when he
cast his ballot for Barack Obama).
23 In the ad, Ledbetter says, “John McCain opposed a law to give women equal pay for
equal work. And he dismissed the wage gap, saying women just need education and
training. I had the same skills as the men at my plant. My family needed that money.” Id.
24 Id. at 3:07-3:18.
25 Ledbetter, Address, supra note 3.
26 Hearing, supra note 3, at 10.
Id. at 11.
COURTING THE PEOPLE
grandmother went before Congress to speak directly to women about their
shared fears of making waves in a male dominated environment:
Justice Ginsburg hit the nail on the head when she said that the majority’s
rule just doesn’t make sense in the real world. You can’t expect people to
go around asking their coworkers how much they are making. Plus, even
if you know some people are getting paid a little more than you, that is no
reason to suspect discrimination right away. Especially when you work
at a place like I did, where you are the only woman in a male-dominated
factory, you don’t want to make waves unnecessarily. You want to try to
fit in and get along.28
Justice Ginsburg also continued to engage in a more public discourse about
the Ledbetter case and her role as an oral dissenter. In an October 2007 speech
posted on the Supreme Court website, she parodied the majority’s reasoning:
“‘Sue early on,’ the majority counseled, when it is uncertain whether
discrimination accounts for the pay disparity you are beginning to experience,
and when you may not know that men are receiving more for the same work.
(Of course, you will likely lose such a less-than-fully baked case.)”29 As
reframed by Justice Ginsburg, Ledbetter’s story was not about a negligent
plaintiff who waited an unconscionably long time to sue; it was about an
ordinary woman struggling to comprehend and eventually document the pay
disparities in her all-male work environment. Justice Ginsburg frankly
acknowledged the zigzag trajectory of change, especially given the real world
employment challenges such a woman faces. In “propel[ling] change,” her
oral dissent had to “sound an alarm” that would be heard by members of
Congress, Lilly Ledbetter and women’s rights advocates more generally.30 Her
dissent had “to attract immediate public attention.”31
Eventually social activists, legal advocacy groups, media translators,
legislators and “role-literate participants” (in Reva Siegel’s terminology)32 not
only heard but acted upon the alarm bells Ginsburg sounded. Marcia
Greenberger of the National Women’s Law Center was one of those “roleliterate participants” who helped carry Justice Ginsburg’s message forward.
Greenberger characterized Ginsburg’s oral dissent as a “clarion call” to the
Id. at 10; see also YouTube, Ledbetter v. Goodyear Equal Pay Hearing: Lilly
Ledbetter, http://www.youtube.com/watch?v=jRpYoUu5XH0 (last visited Mar. 10, 2009).
29 Ginsburg, Eizenstat Lecture, supra note 10.
30 See id. Justice Ginsburg’s willingness to participate in a more expansive conversation
is not entirely unexpected, given her view that conversation should run both ways. “If we
don’t listen we won’t be listened to.” Ginsburg, Leadership Summit, supra note 12.
31 Ginsburg, Eizenstat Lecture, supra note 10; see also Johnson, Black & Ringsmuth,
supra note 17 (manuscript at 7-8).
32 Guinier, supra note 13, at 51; see also Reva B. Siegel, Constitutional Culture, Social
Movement Conflict and Constitutional Change: The Case of the de Facto ERA, 94 CAL. L.
REV. 1323, 1339-48 (2006) [hereinafter Siegel, Constitutional Culture].
BOSTON UNIVERSITY LAW REVIEW
American people “that the Court is headed in the wrong direction.”33 Lilly
Ledbetter became another such participant as her story, with Justice Ginsburg’s
assistance, helped ground and frame the discourse.34 And for the first time in
more than a decade, Congress pushed back against the Supreme Court. In
January 2009, Lilly Ledbetter’s name was enshrined in history when Congress
passed and President Barack Obama signed the Lilly Ledbetter Fair Pay Act.35
In her Ledbetter dissent and subsequent remarks, Justice Ginsburg was
courting the people to reverse the decision of a Supreme Court majority and
thereby limit its effect. In Robert Cover’s “jurisgenerative” sense,36 she
claimed a space for citizens to advance alternative interpretations of the law.
Her oral dissent and public remarks represented a set of demosprudential
practices for instantiating and reinforcing the relationship between public
engagement and institutional legitimacy.
In Justice Ginsburg’s oral dissent we see the possibilities of a more
democratically-oriented jurisprudence, or what Gerald Torres and I term
Jones, Ginsburg’s Famous White Gloves Finally Come Off,
(May 31, 2007, 22:19 PST) (quoting Marcia Greenberger).
34 Justice Ginsburg’s dissent and Lilly Ledbetter’s public statements converge on a
common explanation for Ledbetter’s delay in filing her lawsuit, an explanation that
influenced both the media coverage and the Obama campaign’s framing of the case. See
Adam Liptak, Justices Hear Bias Case on Maternity, Pensions, and Timing, N.Y. TIMES,
Dec. 11, 2008, at B7; Sheryl Gay Stolberg, Obama Signs Equal-Pay Legislation, N.Y.
TIMES, Jan. 29, 2009, http://www.nytimes.com/2009/01/30/us/politics/30ledbetterweb.html?hp. Their mutually reinforcing explanation for Ledbetter’s delay in filing her
lawsuit, their joint outreach to Congress and their success in sparking favorable media
coverage of the new legislation became key talking points on conservative blogs. See, e.g.,
Posting of Hans Bader to OpenMarket.org, http://www.openmarket.org/2009/03/04/
distorting-the-news-to-obamas-advantage/ (Mar. 4, 2009, 15:29); Posting of Orin Kerr to
Volokh Conspiracy, http://volokh.com/posts/1236629897.shtml (Mar. 9, 2009, 16:18);
Posting of Ed Whelan to Bench Memos, National Review Online,
YmY3MzAxYWE (Mar. 9, 2009, 13:51). Indeed, Lilly Ledbetter soon came to symbolize a
populist message. Ledbetter not only was present at the signing ceremony for the bill
named in her honor, but sat with First Lady Michelle Obama during President Obama’s first
address to a joint session of Congress. Michael Falcone, Guests of the First Lady,
Reflecting Main Themes of the Speech, N.Y. TIMES, Feb. 25, 2009, at A16.
Lilly Ledbetter Fair Pay Act of 2009, Pub. L. No. 111-3, 123 Stat. 5. The Act passed
the Senate with “Yea” votes from every present Democrat and all four female Republicans.
&session=1&vote=00014 (last visited Mar. 17, 2009).
36 See generally Robert M. Cover, The Supreme Court, 1981 Term – Foreword: Nomos
and Narrative, 97 HARV. L. REV. 4 (1983) (conceptualizing the law as normative in nature).
COURTING THE PEOPLE
demosprudence.37 Demosprudence builds on the idea that lawmaking is a
collaborative enterprise between formal elites – whether judges, legislators or
lawyers – and ordinary people.
The foundational hypothesis of
demosprudence is that the wisdom of the people should inform the lawmaking
enterprise in a democracy. From a demosprudential perspective, the Court
gains a new source of democratic authority when its members engage ordinary
people in a productive dialogue about the potential role of “We the People” in
Demosprudence is a term Professor Torres and I initially coined to describe
the process of making and interpreting law from an external – not just internal
– perspective. That perspective emphasizes the role of informal democratic
mobilizations and wide-ranging social movements that serve to make formal
institutions, including those that regulate legal culture, more democratic.39
Demosprudence focuses on the ways that “the demos” (especially through
social movements) can contribute to the meaning of law.
Justice Ginsburg acted demosprudentially when she invited a wider
audience into the conversation about one of the core conflicts at the heart of
our democracy.40 She grounded her oral dissent …
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