Earlier today, the Romney campaign responded to a question about whether their candidate supports the Lilly Ledbetter Fair Pay Act’s protection of equal pay for women with an awkward six second silence, followed by a promise to “get back” with an answer about whether or not Romney actually supports equal pay for women. The campaign has spent the rest of the day engaged in ham-handed damage control — first by putting out a statement saying that he is “not looking to change current law,” then by releasing statements by Republican congresswomen who previously voted against the Ledbetter Act.
Yet for all of Romney’s equivocating on whether or not he actually believes that women should be paid the same amount as men who do the exact same job, Romney cannot hide two important facts. The Ledbetter Act was only necessary because of a 5-4 Supreme Court decision which overruled decades of precedent protecting equal pay for equal work; and Romney promised to appoint more justices like the ones who voted against Lilly Ledbetter.
Last November, Romney listed four sitting Justices as the models he will follow if he gets to appoint a justice of his own — Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Chief Justice John Roberts. Every single one of these justices voted against Lilly Ledbetter and against equal pay for women in the workplace. Just like they have voted in favor of corporate immunity from the law on issues ranging from forced arbitration to enabling corporations to buy and sell elections.
But, of course, Congress overruled the Supreme Court’s error in the Ledbetter case when it passed the Ledbetter Act, and Romney now says that he doesn’t want to change “current law.” So doesn’t that mean women’s current rights to equal pay are safe?
Not if Romney gets to appoint any more conservative justices. Just months after Congress spanked the Supreme Court by overruling their attack on women in Ledbetter, the five conservative justices handed down a very similar opinion stripping many older workers of their right to be free from employment discrimination. Worse, in taking away many older workers’ ability to protect their jobs, the Court left no doubt that it was thumbing its nose at precedent. Although longstanding law clearly established that the justices’ assault on older workers was wrongly decided, the Court’s conservatives choose to ignore this law because “it is far from clear that the Court would have the same approach were it to consider the question today in the first instance.” In other words, now that conservatives are in charge, they are free to do whatever they want.
Given that the conservative justices renewed their attack on workers so soon after the Ledbetter Act became law, and that they did so in an opinion that expressly stated that they do not care about precedents or established law, women simply cannot be sure that these same justices won’t hand down another decision much like Ledbetter if given the opportunity to do so. Mitt Romney may claim that he does not want to change “current law” in a way that harms working women, but if he gets to add more justices like Roberts or Scalia to the Supreme Court, he won’t have to. The Supreme Court will do it for him.