Welcome to brain Stuff, a production of iHeart Radio. Hey brain Stuff, Lauren Bogobam Here. Last month, we ran an episode about the late Supreme Court Justice Ruth Bader Ginsburg and some of her historic concurring opinions during the twenty seven years that she sat on the highest court of the United States. Today, we wanted to highlight a few cases in which Justice Ginsburg did not agree with the majority opinion of the Court, because, after all, a dissenting
opinion can be just as important. First up, let's look at the case of Bush versus Gore from the year two thousand. Anyone old enough to remember the two thousand presidential election probably shutters at the phrase hanging Chad, referring to an incompletely punched paper ballot. The figure of speech became a main staple of news headlines and late night
TV monologues for months. It all started in the state of Florida, where it was reported that Republican presidential candidate George W. Bush had beat Democratic presidential candidate Al Gore by just one thousand, seven hundred and eighty four votes. Because the margin was so slim, just zero point zero one percent, state law required an automatic machine recount, which shrunk Bush's lead to just three hundred and twenty seven votes,
when the margin is that tiny. Florida law allows candidates to request a manual recount, which is just what Gore did in the four counties that traditionally voted Democrat, Volucia, Palm Beach, Broward, and Miami Dade. The problem was the counties were given seven days to certify their election returns to the Secretary of State, and they were concerned that they wouldn't make the deadline. Three counties missed the deadline entirely,
Palm Beach, Broward, and Miami Dade. Florida's Secretary of State, Katherine Harris, had required any counties who needed a later filing date to submit a written explanation of the circumstances, but none of the county's submissions met harry Us standards for an extension, so she went ahead and certified Bush as Florida's winner. Fast forward a few weeks to win Gore's campaign to pained an order from the Florida State
Supreme Court for statewide manual recount. The next day, on December nine, in a five to four decision, the U S Supreme Court ruled that the manual recounts must halt and agreed to hear oral arguments from both parties. On December eleven, both parties presented their cases, Bush's team arguing that the Florida Supreme Court had exceeded its authority when it authorized the manual recount, the Gore's team arguing that the case had already been decided at state level and
was not a matter for the federal courts. The U. S. Supreme Court, and a seven to two vote, overturned the Florida decision in favor of Bush's team, ruling that the Florida Supreme Court had violated the equal Protection clause of the Fourteenth Amendment. In the end, on the entire matter, the justices ruled five to four, with the majority arguing that the Florida Supreme Court's decision and to hold a statewide recount had created a new election law, something only
the state legislator could do. Writing for the five justice majority, entered in Scalia stated the votes that were ordered to be counted were not legal votes, that is, those in which there is a clear indication of the intent of the voter, so the recount would do irreparable harm to Bush and the integrity of the democratic process. The dissenters, Ginsburg included, felt that the real threat to the democratic
process was not ordering a recount despite being flawed. They said a recount should be allowed to proceed because no vote should have a deadline to be counted. One noteworthy aspect of ginsburg dissent, she ended it with a plain I dissent rather than her traditional I respectfully dissent. Next, let's look at the case of Shelby County versus Holder.
To do so, let's go back to five at the height of the Civil rights movement, when Congress enacted the Voting Rights Act QUOTE to banish the blight of racial discrimination in voting, which had been rampant even after previous legislature had technically made it legal for black people, Indigenous people, and people of color to vote across the United States. Certain sections of the Act created rules meant to protect
it from changes down the road. In particular, Section four B established a formula to identify areas of the country where discriminatory tests or devices had been most prevalent, and to provide stricter provisions in those areas. These tests or devices included voting prerequisites like literacy tests, and under section five of the Act, jurisdictions were required to seek approval by the Attorney General or a three judge DC panel
before making any changes to voting practices. This feature of the Act, known as a preclearance, was meant to ensure that new changes would have neither the intent nor the effect of racial discrimination on voting. While Section five was initially set expire after five years, the Act was reauthorized several times over the decades. Then in Alabama's Shelby County challenged its constitutionality based on these tests and devices and
preclearance requirements. The claim was that the sections exceeded Congress's power and thus were unconstitutional. According to the Supreme Courts five to four majority opinion, Section four was deemed unconstitutional because it imposed burdens that no longer made sense in the modern era and represented an unconstitutional violation of the power to regulate elections, which are supposed to be governed
by the states themselves. In another major descent, Ginsburg argued that the amendments support Congress's authority to enact legislation specifically targeting potential state abuses as long as Congress demonstrates that the means taken rationally advanced a legitimate objective, like the Voting Rights Act. She wrote, growing up preclearance when it has worked and is continuing to war to stop discriminatory changes is like throwing away your umbrella in a rainstorm
because you're not getting wet. Ginsburg wasn't alone in her opinion. Many leaders in politics and law expressed deep disappointment with the decision, and since the ruling, several states that were once covered under preclearance have passed laws to remove provisions like online voting registration and early voting. Five years after the ruling, nearly a thousand polling places had been shut down,
many of which were located in predominantly African American communities. Finally, let's consider the two thousand seven case of lead Better versus Goodyear Tire and Rubber Company. Anyone who saw the documentary RBG probably remembers the assertive Alabama drawl of Lily lead Better, the plaintiff in this important case of employment discrimination, over the course of her nearly two decade career at the good Year Planned in Gadsden, Alabama, where lad Better
was one of just a few female supervisors. Led Better faced sexual harassment and was tolled by her employer that women shouldn't be working there because salaried employees or given or denied raises based on performance evaluations. Leadbetter believed she
was being short changed compared with her male counterparts. Good Year forbade employees to discuss pay, so lad Better didn't have solid proof of any sex based discrimination until she received an anonymous note listing the salaries of three male managers. That's when she learned that she had been paid forty percent less than the men with equal jobs in her division.
Lad Better filed suit after her retirement in November of nineteen ninety eight, claiming discrimination under Title seven of the Civil Rights Act of nineteen sixty four, which prohibits employers from discriminating against employees on the basis of sex, race, color,
national origin, and religion. The district court awarded lad Better over three point five million dollars in back pay and damages, which the judge later reduced to three hundred and sixty thousand dollars, but upon repeal, Goodyear argued that four Leadbetters claims to hold up in court the alleged discriminatory events would have had to occur within the one hundred and eighty day period before her filing, and that since she
had waited, her claim should not stand. The Eleventh Circuit ruled in good Year's favor, and while there were to pay decisions made during that one and eighty day period, the court felt quote, there was insufficient evidence to prove that Goodyear had acted with discriminatory intent during that time.
When the case made it to the Supreme Court, the justices had to decide whether a plaintiff is allowed to bring an action under Title seven when the illegal pay discrimination their alleging occurred outside of the statutory limitations period. The Court voted five to four the Leadbetter had missed her window. Ginsburg wrote a passionate dissent, arguing that quote, pay disparities often occur, as they did in Leadbetters case in small increments cause to suspect that discrimination is at work,
develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meat for a federal case, particularly when the employee trying to succeed in a non traditional environment is averse to making ways. While the case didn't turn out as lead Better supporters had hoped, it did go on to
make history. On January twenty nine of two thousand nine, President Barack Obama signed the Lily Leadbetter Fair Pay Act as the first piece of legislation of his administration. The law overturned the Supreme Court's decision and states that each paycheck containing discriminatory compensation is a separate violation, no matter when that discrimination began. Today's episode was written by John
Partano and produced by Eyler Clay. From one on this and lots of other curious topics, visit how stuff works dot com. Brainstuff is a production of I Heart Radio. For more podcasts my heart Radio, visit the iHeart Radio app, Apple Podcasts, or wherever you listen to your favorite shows.