Mitt Romney’s campaign just can’t figure out whether he supports equal pay for women or not. When asked last April about Romney’s view on the Lilly Ledbetter Fair Pay Act, which restored equal pay rights the Roberts Court cut back in 2007, Romney’s campaign responded with an awkward six second silence followed by a promise to “get back” with an answer to the question. The campaign never answered whether Romney supports the law, merely stating that he is “not looking to change current law.” That is, of course, until last night, when Romney’s senior adviser Ed Gillespie said that Romney “was opposed to it at the time” and would not have signed the Ledbetter Fair Pay Act. And that admission lasted all of a few hours. Gillespie now claims that Romney “never weighed in on it.”
The truth, however, is that we do not have to wonder about what Romney’s view on equal pay for women is. We do not even have to wait for his campaign to reveal Romney’s unspoken view on this issue, because the question can be answered in just one picture. This one:
That’s Justice Samuel Alito, the author of the Ledbetter opinion stripping many women of their right to equal pay for equal work. When asked how he would select his Supreme Court appointments if elected president, Romney named Alito, along with Chief Justice Roberts and Justices Scalia and Thomas, as his models. All four of Romney’s model justices voted against Lilly Ledbetter and against equal pay for women.
Romney’s promise to place more Alitos on the Supreme Court matters much more than his claim that he is not currently interested in enacting anti-woman legislation. Indeed, it would matter even more than if Romney affirmatively promised to sign pro-woman legislation if elected president. Here is why:
Federal law requires many employees who face pay discrimination to meet a very brief deadline—often as short as six months—or else they lose their ability to challenge their employer’s unlawful actions. The flip side of this, however, is that this clock starts anew every time an employee receives a lower paycheck than her or his coworkers due to unlawful discrimination. As a unanimous Supreme Court explained in its 1986 decision in Bazemore v. Friday, “[e]ach week’s paycheck that delivers less to [an African-American] than to a similarly situated white is a wrong actionable” under federal law. Because gender discrimination is banned by the same law that prohibits race discrimination, Bazemore’s holding also benefited women.
Or, at least, it did until Justice Alito got his hands on it. Alito’s majority opinion in Ledbetter established that, if a woman’s employer makes a decision early in her career that undermines her earning power for decades, the woman must challenge that decision almost immediately or her rights are lost—and they are lost even if she did not discover she was a victim of pay discrimination until years later. Notably, in reaching this decision, the 5-4 majority relied heavily on a 1989 decision, Lorance v. AT&T Technologies, even though Lorance was overruled by an Act of Congress in 1991.
So Justice Alito’s Ledbetter opinion did not simply reject a woman’s claim that could enforce her right to equal pay, it thumbed its nose at a unanimous Supreme Court precedent and relied, at least in part, upon a precedent that had been overruled by an Act of Congress. The sort of justice that would do this does not care whether Congress enacted a law protecting equal pay for women, and Romney wants to put even more of them on the Supreme Court.
So Romney can say what he wants to say about equal pay. He can even outright endorse the Lilly Ledbetter Fair Pay Act and promise to never, ever sign a law repealing it. Until he takes back his promise to give America more Sam Alitos, anything else he says about equality is empty words.