The Supreme Court, Job Discrimination, Affirmative Action, Globalization and Class Actions: Justice Ginsburg’s Term


Publish Date:
June 18, 2014
Publication Title:
36 University of Hawai'i Law Review 371
Journal Article
  • William B. Gould IV, The Supreme Court, Job Discrimination, Affirmative Action, Globalization and Class Actions: Justice Ginsburg's Term, 36 University of Hawai'i Law Review 371 (2014) (based on a speech delivered to the Labor & Employment Section of the State Bar of Hawai'i in Honolulu, Hawai'i on October 11, 2013).


From the Introduction [footnotes omitted]:

Thirty-three years ago, I called the October 1980 term of the Supreme Court “Justice Brennan's Term,” as he registered a number of important labor law dissents as well as authored some majority opinions. That term was just beginning to absorb the results of the 1968 elections, as a result of which President Richard M. Nixon was almost immediately able to appoint Chief Justice Warren Burger and soon thereafter Justice William Rehnquist. Justice Rehnquist, eventually Chief Justice when so nominated by President Reagan, was to push the Court far to the right from the beginning, even though he was sometimes at odds with the more moderate Justice Lewis Powell. The sharp shift to a conservative agenda unfolded anew at the beginning of the 1980s with a series of appointments by President Reagan and both Bushes in his wake. The fairly uncontroversial appointments of Justices Ruth Ginsburg and Stephen Breyer by President Clinton were perceived to be judicial moderates or centrists.

But from 1980-1981, Justice William Brennan, along with Justice Thurgood Marshall, had begun to develop regular dissents, following in the footsteps of predecessors like Justices William Douglas and Hugo Black and Justices Oliver Wendell Holmes and Louis Brandeis before them. The pattern, which gathered momentum in the 1980s, had begun to manifest itself at that juncture more than three decades ago. In discussing Justice Brennan's work, I quoted from Murray Kempton and what he had said of Cardinal Wyszynski: “The great lives are lived against the perceived current of their times.”

This term, that of October 2012, saw Justice Ginsburg playing a similar role, frequently with three colleagues joining her and at least one in solitary dissent. Though she had registered numerous earlier dissents, both persuasive and eloquent, it seems as though she, as the senior Justice among the dissenters and thus able to assign herself the opinion, found her voice even more so in 2012-2013 as the Court drifted ever more to the right under the leadership of Chief Justice Roberts accompanied by Justice Alito. For the most part, her dissents this term were in the areas of racial discrimination, e.g., a memorable case relating to voting rights and in a number of cases concerning job-bias matters as well.

The terrain of the Supreme Court docket has shifted considerably since the earlier period of Justice Brennan thirty-three years ago. The October 1979 term consisted of 152 cases, 122 discounting the per curiam opinions. Twenty of those could be characterized as labor or employment. October 1980 saw the Court's docket diminish further to 138 cases, 113 excluding per curiam opinions. In the October 2012 Term, the Court decided merely seventy-eight cases, eleven of them consisting of employment cases and none of the traditional labor law variety. But the latter have not completely disappeared given a number of important matters before the Court in the October 2013 term involving labor law issues.