Justice Souter and Judge Wood — a case study

Wouldn’t it be interesting if Judge Diane Wood — arguably the front-runner for nomination to the Supreme Court — wrote an opinion on an issue recently decided by a divided Supreme Court? And how cool would it be if the majority opinion at the Supreme Court level reached the same result as Wood and was written by Justice Souter, the person she would replace? And, to stir the pot a little more, imagine that this was a case in which the four liberal Justices split down the middle, with Justice Ginsburg writing the dissent.

As you probably have guessed, this juicy scenario has occurred. In Ameritech Benefit Plan Committee v. Communications Workers of America, 220 F.3d 814 (7th Cir. 2000), Judge Wood wrote an opinion, for a unanimous panel, holding that any challenge under Title VII of the Civil Rights Act of 1964 to an employer’s treatment of service credit for pregnancy leave taken prior to the effective date of the Pregnancy Discrimination Act (PDA) is time-barred. This was true, the panel decided, even though certain employees were not adversely affected until after the PDA was enacted.

Judge Wood noted that for the affected employees, Ameritech’s decision “made the difference between eligibility to take early retirement and to enjoy other pension benefits, and lack of eligibility.” And it was undisputed that Ameritech is now legally barred from determining employee benefits based on determinations of length of service that favor persons who have not taken pregnancy leave over persons who have.

But despite these (let’s call them) empathetic considerations, Judge Wood concluded that it was too late for the affected employees to complain about a method of calculation that applied to only leave taken pre-PDA. She based her decision on two Supreme Court cases that dealt with issues of “continuing violations”/”past violations with present effects”: Bazemore v. Friday and United Air Lines v. Evans. She concluded that Evans — which found no continuing violation where the employer refused to fix the effects of a past unlawful firing by adjusting the seniority of the employee after she was rehired — provides a “better fit” to Ameritech’s case.

The decision in Ameritech created a split among the circuit courts of appeals. For in 1991, the Ninth Circuit had found a Title VII violation where post-PDA retirement eligibility calculations incorporate pre-PDA accrual rules that differentiated on the basis of pregnancy.

This week, the Supreme Court resolved the issue in favor of the approach taken by the Seventh Circuit (per Judge Wood) and, later the Sixth Circuit. The case was AT&T Corp. v. Hulteen, 2009 WL 1361539. Justice Souter wrote the opinion for a 7-2 majority. Justice Ginsburg dissented and was joined by Justice Breyer.

Though reaching the same result as Judge Wood, Souter did not adopt her reasoning. In fact, he did not cite Evans (neither did Justice Stevens in his brief concurrence nor Ginsburg in her dissent). And Souter found that Bazemore, the other case Wood focused on, “has nothing to say here.”

Souter based his opinion for the Court on the view that “benefit differentials produced by a bona fide seniority-based pension plan are permitted unless they are the result of an intention to discriminate.” Here, he found no evidence of such an intention and no indication that the PDA applies retroactively to recharacterize the pension calculation method as illegal when put into place.

For Souter, the key precedent was Teamsters v. United States, not Evans and General Elec. Corp. v. Gilbert. The same two cases were the focus of Ginsburg’s dissent. Judge Wood cited each of these cases only once, in passing and without discussion. Judge Wood also declined to discuss, or even mention, the 1991 Ninth Circuit case (Pallas v. Pacific Bell) that, as noted, had reached the result she rejected.

On first reading, at least, Justice Souter’s opinion (and Justice Ginsburg’s, as well) seems to represent a far more thoughtful analysis of the issue than that provided by Judge Wood. To be sure, this is just one case. Moreover, the direction an opinion takes can be influenced by the arguments made by the parties and by the opinion under review. And we should not forget that Supreme Court Justices are aided by the best available law clerks.

But there is no indication in her Ameritech opinion that Judge Wood is the towering legal intellect her supporters make her out to be, or even that she is the equal of Justice Souter.

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