I Dissent: How Ruth Bader Ginsburg Became the Notorious Rbg

I DISSENT: HOW RUTH BADER GINSBURG BECAME THE NOTORIOUS RBG

CLE Credit: 1.0 Friday, June 14, 2019 11:20 a.m. – 12:20 p.m. Grand Ballroom Galt House Hotel Louisville, Kentucky

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TABLE OF CONTENTS

The Presenter ...... i

I Dissent: How Ruth Bader Ginsburg Became the Notorious RBG ...... 1

Ginsburg Dissent Gonzales v. Carhart ...... 13

Ginsburg Dissent Ledbetter v. Goodyear Tire & Rubber Co...... 27

Ginsburg Dissent Shelby County, Ala. v. Holder ...... 37

THE PRESENTER

Irin Carmon Brooklyn, New York

IRIN CARMON is a journalist, the bestselling co-author of Notorious RBG, and a frequent speaker around the country. A New York Magazine senior correspondent and on-air CNN contributor, she reports and comments on gender, politics, and the law. The New York Times described Ms. Carmon as being "known for her smarts and feminist bona fides." Of Notorious RBG: The Life and Times of Ruth Bader Ginsburg (2015) which spent three months on the Times' bestseller list, the paper’s staff book critic wrote, "That I responded so personally to it is a testimony to Ms. Carmon's storytelling and panache.” Ms. Carmon and her co-author were featured in the award-winning 2018 documentary RBG. In 2017 and 2018, Ms. Carmon teamed up with the Washington Post’s investigative team to break the news of sexual harassment and assault allegations against Charlie Rose, as well as CBS's knowledge of his conduct. That work was recognized with a 2018 Mirror Award. She was also a contributing writer to the Post’s Outlook section. Ms. Carmon previously served as staff reporter focusing on women’s rights at MSNBC and NBC News, Salon and Jezebel. Her reporting and commentary has appeared across print, radio, television, and digital platforms. She speaks frequently across the country on women's leadership and rights. In 2011, she was one of Forbes' 30 Under 30 in Media. She graduated from Harvard, magna cum laude, with highest honors in literature, in 2005.

ii I DISSENT: HOW RUTH BADER GINSBURG BECAME THE NOTORIOUS RBG

On the morning of June 25, 2013, Justice Ruth Bader Ginsburg read aloud her dissent from the bench in the Supreme Court’s case Shelby County, Ala. v. Holder,1 in which a majority of the Court overturned a portion of the Voting Rights Act of 1965 as unconstitutional.2 Atop her robe, she wore her black jabot with scalloped glass beads, which has since been popularly referred to as her “dissent collar.”3 Just the day before, Justice Ginsburg had read aloud two dissents from the bench, one in an affirmative action case and another in two workplace discrimination cases.4 “Announcing a majority opinion in the court chamber is custom, but reading aloud in dissent is rare. It’s like pulling the fire alarm, a public shaming of the majority that you want the world to hear.”5 “‘Hubris is a fit word for today’s demolition of the VRA,’ RBG had written in her opinion. Killing the Voting Rights Act because it had worked too well, she had added, was like ‘throwing away your umbrella in a rainstorm because you are not getting wet.’”6 Justice Ginsburg read dissents from the bench in five cases during the 2012-2013 term, which broke a 50-year record among all justices.7 Following her dissent in Shelby County, progressives on the Internet began creating images and memes supporting Justice Ginsburg to convey their frustration with the Court’s decision.8 Shana Knizhnik, a law student at NYU, created a Tumblr as a tribute to Justice Ginsburg, and “Notorious R.B.G.” was born.9

Ruth Bader Ginsburg’s experiences as a Jewish woman coming of age in the U.S. in the early 1950s stimulated the focus she would later take during her professional career on gender issues and equality of the sexes. While sitting shivah for her mother, who died of cancer days before her high school graduation, Ruth was angered that women did not count for the minyan, the quorum of ten men needed to say prayers for the dead.10 She attended college at Cornell University, where women were admitted in a ratio of one to four with men.11 Professional schools for law, medicine, and other traditionally “male”

1 570 U.S. 529 (2013).

2 Carmon, Irin Carmon & Knizhnik, Shana, Notorious RBG: The Life and Times of Ruth Bader Ginsburg (New York: HarperCollins, 2015), pgs. 2-3.

3 Id. at 2.

4 Id.

5 Id. at 3.

6 Id. at 4.

7 Id. at 5.

8 Id. at 6-7.

9 Id. at 7. See also https://notoriousrbg.tumblr.com/.

10 Id. at 28; see also De Hart, Jane Sherron, Ruth Bader Ginsburg: A Life (New York: Alfred A. Knopf, 2018), at 26.

11 De Hart, supra note 10 at 39.

1 professions limited the number of women admitted to a maximum of 10 percent.12 Prior to marrying her college sweetheart, Marty Ginsburg, Ruth briefly considered applying to business school along with her fiancé. However, Harvard Business School would not accept women, and both Ginsburgs decided to apply to Harvard Law School instead.13 Following their wedding, Marty signed up for two additional years of ROTC at the end of the Korean War. The Ginsburgs deferred law school for two years to move to Fort Sill, Oklahoma.14 While there, Ruth took the civil service exam to work for the federal government, qualifying to be a claims adjuster with the Social Security office at the GS-5 rank.15 However, when she notified her supervisors she was three months pregnant, they dropped her rank to GS-2, the lowest rank with the least amount of pay and responsibility.16

After moving back from Oklahoma in 1956, Ruth began classes at Harvard Law School, one of nine women in a class of 552 students.17 Her daughter, Jane, had just celebrated her first birthday that July.18 At the time, there were no women on the faculty at Harvard Law.19 Following a dinner at his home, law school dean Erwin Griswold asked each of his female students “‘Why are you at Harvard Law School, taking a place that could have gone to a man?’”20 After making law review as one of only two women,21 Ruth was barred from checking a footnote at Lamont Hall, Harvard’s undergraduate library, because only men were allowed in the reading room where the journal she needed was kept.22 Some professors would hold “Ladies’ Day” when they would only call on the female class members asking humiliating questions.23 Male classmates gave the female students nicknames; Ruth’s were “Ruthless Ruthie” and “Bitch.”24 During exams in Langdell Hall, female students were forced to walk a block to Austin Hall to use the restroom because there was no women’s room in the building.25

12 Id. at 40.

13 Id. at 45.

14 Id. at 49.

15 Carmon, supra note 2 at 32.

16 Id. at 33.

17 De Hart, supra note 10 at 54.

18 Id. at 51.

19 Id. at 55.

20 Id. at 56.

21 Carmon, supra note 2 at 35.

22 De Hart, supra note 10 at 58.

23 Carmon, supra note 2 at 35.

24 De Hart, supra note 10 at 58.

25 Id. at 59.

2 In late 1957, Marty Ginsburg was diagnosed with cancer.26 Ruth juggled caring for her daughter, helping Marty with cancer treatment and completion of his third year in law school, and her own studies and law review assignments.27 With Ruth’s aid, Marty survived cancer and graduated magna cum laude the following spring.28 After his graduation, the Ginsburgs moved to New York for Marty’s new job at a firm in Manhattan.29 Ruth transferred to Columbia for her last year, where she graduated in 1959 tied for first place in her class.30 Despite her academic success, the New York firm where she clerked the previous summer did not offer her a job.31 She received only two second interviews while at Columbia, and neither firm made an offer.32

Sex and motherhood, the rejected candidate soon discovered, were her downfall. Clients, she was told, would be uneasy with a woman. Other members of the firm too might feel uncomfortable. Or, she would be ill at ease in such a masculine environment…. How could she, with all of her family obligations, possibly have time for the informal social activities that generated client contacts?33

Columbia professor Gerald Gunther interceded on Ruth’s behalf, eventually securing her a clerkship with Judge Edmund L. Palmieri with the U.S. District Court for the Southern District of New York.34 Following a successful clerkship for Judge Palmieri, Ruth Ginsburg accepted an invitation from Hans Smit, founding director of the Columbia Law School’s Project on International Procedure, to help co-author a book on the Swedish legal system.35 The project required her to move to Sweden on a temporary basis and spend a year learning the Swedish language.36 While there, Ruth was exposed to Swedish culture’s efforts toward achieving greater gender equality, which included a “government- appointed commission to study women’s issues and propose policies to promote equality between the sexes.”37

26 Id. at 70.

27 Id. at 71-73.

28 Id. at 72.

29 Id. at 73.

30 Id. at 74, 76.

31 Id. at 78.

32 Id.

33 Id. at 79.

34 Id. at 81.

35 Id. at 85.

36 Id. at 86.

37 Id. at 89.

3 After returning from Sweden, Ruth Ginsburg accepted a faculty position at Rutgers Law School. 38 At the time, women held only 18 tenured academic posts in law schools in the U.S.39 When she questioned Rutgers’ dean about the discrepancy between pay for male and female professors, he told her “she was now at an underfunded state university. . . [and] had a husband to take care of her, so it was only fair that she receive a lower salary than a man with a family to support.”40 When she became pregnant with her second child, James, in early 1965,41 she disguised the pregnancy with her mother-in-law’s clothes until her employment contract with Rutgers was renewed for another year.42 She returned to teaching within a month of his birth.43

After she became a full professor with tenure in 1969 and her son was old enough to enroll in nursery school, Ruth Ginsburg began volunteering with the New Jersey affiliate of the American Civil Liberties Union to gain litigation experience.44 The decision would change her life. The Ginsburgs volunteered to litigate Moritz v. Commissioner of Internal Revenue,45 a sex discrimination case involving a federal income tax deduction that differentiated between never-married, employed men and women.46 The ACLU agreed to cover expenses on the test case.47 After reading Ruth’s work on the Moritz brief in April 1971,48 Melvin Wulf, legal director of the ACLU’s national office,49 thought she would be a perfect candidate for director of the ACLU’s proposed Women’s Rights Project.50 The ACLU president, Aryeh Neier, appointed Ginsburg as the first director of the Women’s Rights Project in spring 1972.51 She had also accepted an offer to become Columbia’s first female full professor in January 1972,52 and planned to split her time between teaching

38 Id. at 91.

39 Id.

40 Id.

41 Id. at 92.

42 Id. at 93.

43 Id.

44 Id. at 101.

45 469 F.2d 466 (10th Cir. 1972).

46 De Hart, supra note 10 at 126.

47 Id.

48 Id. at 134.

49 Id. at 125.

50 Id. at 134.

51 Id. at 133. See also Carmon, supra note 2 at 19.

52 De Hart, supra note 10, at 139.

4 and working at the ACLU. “The [Women’s Rights Project] would have three missions: public education, changing the law, and bringing cases to court, with the help of local ACLU affiliates across the country.”53 Over the course of her time at the ACLU, Professor Ginsburg worked on a number of gender equality cases, taking many all the way to the U.S. Supreme Court. The chart below, summarized from a chart included in Irin Carmon & Shana Knizhnik’s book Notorious RBG: The Life and Times of Ruth Bader Ginsburg, outlines Ginsburg’s work on gender issues for the ACLU.54

Case What Was at RBG’s Role Result Stake The widower cases: RBG represented RBG took all three Kahn was RBG’s first and Kahn v. Shevin55 men harmed by to the Supreme last loss at the Court.59 She Weinberger v. Wiesenfeld56 discriminatory Court. Weisenfeld prevailed in the other two Califano v. Goldfarb57 federal and state would become cases. laws. RBG’s favorite case.58

The pregnancy cases: Women were Struck was The Court held it was wrong Struck v. Secretary of Defense60 forced to choose declared moot, but to force teachers out of LaFleur v. Cleveland Board of between RBG helped write schools halfway through Education61 pregnancy or the brief for the their pregnancies, but Geduldig v. Aiello62 their jobs in the pregnancy upheld discrimination in General Electric v. Gilbert63 military and discrimination disability and pension teaching. cases that made it benefits because Pregnant women to the Supreme “pregnancy was theoretically were also Court. voluntary.”64 excluded from disability insurance and pension plans.

53 Carmon, supra note 2, at 59.

54 The chart is available in its entirety on pages 74-75 of Carmon & Knizhnik’s book.

55 416 U.S. 351 (1974).

56 420 U.S. 636 (1975).

57 430 U.S. 199 (1977).

58 Carmon, supra note 2, at 123.

59 Id. at 75.

60 93 S.Ct. 676 (1972); see also Struck v. Secretary of Defense, 460 F.2d 1372 (9th Cir. 1971).

61 414 U.S. 632 (1974).

62 417 U.S. 484 (1974).

63 429 U.S. 125 (1976).

64 Carmon, supra note 53, at 75.

5 Forced sterilization of black A teen mother in RBG was listed as “The case hit a dead end on women: NC was forcibly co-author on the a technicality.”66 Cox v. Stanton 65 sterilized through Women’s Rights the state Project’s brief, eugenics plan. which argued NC had violated the Plaintiff’s constitutional rights.

The jury cases: State jury service RBG took the RBG won. Edwards v. Healy67 and Taylor v. was optional for cases to the Louisiana68 women, which Supreme Court. Duren v. Missouri69 criminal defendants argued violated their right to equal protection and a fair trial.

The near-beer case: Plaintiffs RBG took the case RBG won in a “legal Craig v. Boren70 challenged an to the Supreme landmark” case that “applied OK statute that Court. ‘intermediate scrutiny’ to allowed women laws that discriminated on to buy low the basis of sex.”71 alcohol beer at age 18 while men had to wait until age 21.

Following passage of the Omnibus Judgeship Bill in 1978, which expanded positions on the federal bench by one-third,72 Professor Ginsburg submitted questionnaires for prospective nominees for positions on the Second Circuit and D.C. Circuit Court of Appeals.73 President Jimmy Carter nominated her to the U.S. Court of Appeals for the D.C. Circuit position on April 11, 1980.74 The Senate Judiciary Committee voted 8-1 to

65 529 F.2d 47 (4th Cir. 1975).

66 Carmon, supra note 53, at 75.

67 421 U.S. 772 (1975).

68 419 U.S. 522 (1975).

69 439 U.S. 357 (1979).

70 429 U.S. 190 (1976).

71 Carmon, supra note 53, at 75.

72 De Hart, supra note 10, at 277.

73 Id. at 278.

74 Id. at 290.

6 recommend Ginsburg for the judgeship on June 17, 1980; the only holdout was Strom Thurmond from South Carolina.75 Following full Senate ratification, Ruth Bader Ginsburg was sworn in as a federal judge on June 18, 1980.76 During her time on the D.C. Circuit, Judge Ginsburg became known as a moderate. “RBG saw the role of an appeals court judge as fundamentally different than her old job; she was to follow precedent, not try to change it. And on a court where most decisions were made on a panel of three, RBG developed her fixation on compromise and collegiality.”77 “A Legal Times study in 1988 found [she] had voted with the famously conservative judge Robert Bork in 85 percent of the cases where they’d been on a panel together, compared with 38 percent of the time she voted with a fellow Carter appointee.”78

Thirteen years later, Judge Ginsburg accepted her nomination by President Bill Clinton to the U.S. Supreme Court as an associate justice on June 14, 1993.79 During her confirmation hearings, “RBG did not apologize for the ACLU, for being a feminist, or for supporting abortion rights.”80

The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity,” she said simply. “It is a decision she must make for herself. When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.81

“When RBG’s nomination reached the Senate floor, only three senators voted against her.”82 Ruth Bader Ginsburg was sworn in as a Supreme Court Justice on August 10, 1993.83

Early on, she established herself as a moderate, “keeping her dissents and concurring opinions narrowly focused, and became part of the majority whenever possible.”84

Instead of following the liberal lead of Blackmun and Stevens, she found herself more often agreeing with Souter and Kennedy. Indeed, in cases

75 Id. at 291.

76 Id.; see also Carmon, supra note 2 at 82.

77 Carmon, supra note 2, at 84.

78 Id. at 86.

79 De Hart, supra note 10, at 303.

80 Carmon, supra note 2, at 88.

81 Id.

82 Id. at 89.

83 De Hart, supra note 10, at 321.

84 Id. at 329.

7 involving civil liberties and civil rights, Justice Souter had a more liberal record than did Ginsburg initially.85

On cases involving gender, she voted with the majority save one exception86 – Harris v. Forklift Systems, Inc.,87 a sexual harassment case. However, three years into Ginsburg’s tenure on the Court,88 a pending equal protection case involving whether the Virginia Military Institute (VMI) could deny admission to women, presented an opportunity to “validate Ginsburg’s career as an advocate.”89

“VMI claimed that admitting women would undermine its mission, which included training cadets by an ‘adversative method’ and which the academy argued couldn’t be used to train women.”90 “After the federal government filed a discrimination claim, VMI set up a weak imitation at a sister school, which the state named the Virginia Women’s Institute for Leadership.”91 The initial vote in the justices’ conference against upholding the lower courts’ decision for VMI was 6-2, with Chief Justice Rehnquist and Justice Thomas voting in VMI’s favor.92 Following Supreme Court practice, because the Chief Justice was in the minority, Justice Stevens assigned the majority opinion to Justice Ginsburg.93 “On June 26, 1996, Ginsburg read aloud to a packed courtroom portions of an opinion that would be termed ‘one of the Court’s most important sex discrimination cases in years.’”94 The Court held Virginia failed “to correctly apply the standard requiring the state to demonstrate ‘an exceedingly persuasive justification’ for an official action that treats women and men differently.”95

“The case that helped turn RBG into a great dissenter was one she never liked talking about”96 – Bush v. Gore.97 The Court split 5-4, holding the Florida Supreme Court’s attempt to allow a recount of votes in the 2000 Presidential election violated the equal protection

85 Id.

86 Id. at 330.

87 510 U.S. 17 (1993).

88 Carmon, supra note 2, at 89.

89 De Hart, supra note 10, at 332.

90 Carmon, supra note 2, at 90.

91 Id.

92 De Hart, supra note 10, at 341.

93 Id.

94 Id. at 342. See also United States v. Virginia, 518 U.S. 515 (1996).

95 De Hart, supra note 10, at 343.

96 Carmon, supra note 2, at 128.

97 531 U.S. 98 (2000).

8 clause.98 Justice Ginsburg issued one of four dissents in the case,99 focusing on “the hypocrisy of Rehnquist, Scalia, and Thomas when it came to federalism.”100

The Court’s lack of deference to state sovereignty in the dispute. . . undermined the majority’s equal protection holding. Given widespread failures in voting methods and machine tabulation, Ginsburg argued, “the recount adopted by the Florida court, flawed though it may be,” was no “less fair or precise” than the certification that had preceded that recount. Rather than demand a level of perfection that few other states could have attained, the Court should have deferred to the Florida Supreme Court’s reasonable attempts to tabulate the vote as accurately as possible without imposing a December 12 deadline.101

Another scorching dissent was soon to come. While “RBG [had] joined the court feeling unusually optimistic”102 about abortion rights due to the recent decision Planned Parenthood of Southeastern Pennsylvania v. Casey,103 which “reaffirmed the core of the abortion right recognized in Roe v. Wade,”104 her feelings of optimism did not last. In 2003, President Bush signed the federal “partial-birth abortion” ban into law.105 Justice Sandra Day O’Connor announced her retirement in July 2005,106 and Chief Justice William Rehnquist succumbed to cancer in September 2005.107 President Bush’s nominees John Roberts and Samuel A. Alito joined the Supreme Court as chief justice and associate justice in September 2005 and January 2006.108 The challenge to the federal partial-birth abortion ban reached the Supreme Court in 2007 in Gonzales v. Carhart.109

The 5-4 vote in Gonzales v. Carhart fulfilled Ginsburg’s fears. It reversed a thirty-year history in which the Court never departed from the neutral position that Roe took with regard to the status of the fetus. Further, it

98 De Hart, supra note 10, at 370-71.

99 Carmon, supra note 2, at 128.

100 De Hart, supra note 10, at 371.

101 Id. at 372.

102 Carmon, supra note 2, at 131.

103 505 U.S. 833 (1992).

104 Carmon, supra note 2, at 131. See 410 U.S. 113 (1973).

105 Id. at 132.

106 Carmon, supra note 2, at 21.

107 Id.

108 Id.

109 Id. at 133; see also 550 U.S. 124 (2007).

9 banned a specific abortion procedure and wrote the health exception out of the law. Roberts, Alito, Kennedy, Scalia, and Thomas. . .voted to uphold the Partial-Birth Abortion Ban Act.110

When the decision was announced, Ginsburg made the decision to read aloud her dissent from the bench.111 “Wiping out any lingering reservations about her commitment to Roe v. Wade, she not only defended women’s reproductive rights but grounded them in sex- equality principles, citing equal protection precedents – including decisions she had litigated or written.”112

Justice Ginsburg read a second dissent aloud from the bench on May 27, 2007113 in the case Ledbetter v. Goodyear Tire & Rubber Co.114 It was the first time she had ever read two dissents from the bench in one term.115 Lilly Ledbetter filed suit under Title VII of the Civil Rights Act and the Equal Pay Act after she discovered she was making less than the men in her department for the same job.116 The district court ruled for Ledbetter and awarded her $3.3 million in back pay and punitive damages.117 The Eleventh Circuit reversed, holding “she could not show intentional discrimination in her last pay-setting period six months prior to lodging her complaint with the EEOC.”118 The Supreme Court held against Ledbetter, finding “she should have filed a charge of discrimination ‘within 180 days after each allegedly discriminatory employment decision was made and communicated to her.’”119 Justice Stevens asked Ginsburg to write the dissent.120 “Her ability to write in plain language that would allow the public to empathize with Ledbetter’s plight had precisely the effect she intended.”121 Senator Hillary Clinton announced she would submit a bill to Congress to amend Title VII.122 While that bill died in the Senate in

110 De Hart, supra note 10, at 389.

111 Id. at 392.

112 Id. at 393. Justice Ginsburg’s full dissent in Gonzales v. Carhart is included infra.

113 Id. at 395.

114 550 U.S. 618 (2007).

115 Carmon, supra note 2, at 140.

116 De Hart, supra note 10, at 395.

117 Id.

118 Id.

119 Carmon, supra note 2, at 136.

120 De Hart, supra note 10, at 397. The full dissent is reprinted infra.

121 Id. at 399.

122 Id.

10 2008, President Obama signed the Lilly Ledbetter Fair Pay Act into law only 10 days into his presidency.123

“What changed during Ginsburg’s second decade on the Court – apart from its composition – was her own level of frustration with continued conservative dominance.”124

She was no longer willing to try to piece together another centrist compromise that violated her principles. Nor was she now inclined to cast her objections in the neutral, detached language that had generally characterized her dissents in the Rehnquist years. Gradually her judicial voice acquired new authority, passion, and edge.

The change was amplified by the frequency of her oral dissents from the bench.... During her first decade on the Court, Ginsburg exercised this “nuclear option” only six times. After 2006, the sight of the tiny black-robed justice rising from the bench wearing her “black and grim” dissenting collar and clutching her papers became a familiar sight – thirteen times between 2006 and 2015. At the end of the 2012 term, she actually broke a record for oral disagreement, speaking three times in one day, each time about equal rights. Nor was she the only member of the liberal minority to speak out more. Dissents from the bench were on the rise in the Roberts Court.125

In Shelby County v. Holder,126 the Court struck down Section 4 of the Voting Rights Act, which had been used to determine the areas designated for federal oversight to help the disenfranchised gain access to the ballot.127 Ginsburg’s “powerful dissent, which Breyer, Sotomayor, and Kagan joined, did not mince words. Foremost she reminded her right- leaning colleagues that the assessment as to whether the VRA should continue in full force was Congress’s to make.”128 Following the Court’s decision, “[b]y 2016, a total of fourteen states had adopted restrictions on voting rights, earning the United States the dubious distinction of being the only mature democracy in the world that made it harder rather than easier for its citizens to vote.”129

In the years since gaining the moniker “Notorious RBG,” Justice Ginsburg has dissented in numerous cases, including Burwell v. Hobby Lobby Stores, Inc.,130 which held privately held corporations could deny birth control coverage to employees if the corporation’s

123 Carmon, supra note 140.

124 De Hart, supra note 10, at 423.

125 Id. at 424-25.

126 570 U.S. 529 (2013).

127 De Hart, supra note 10, at 445-46; Carmon, supra note 2, at 143.

128 De Hart, supra note 10, at 446. Justice Ginsburg’s full dissent is included infra.

129 Id. at 449.

130 573 U.S. 682 (2014).

11 owners objected on religious grounds. Just this week, she traded jabs with Justice Clarence Thomas over statements made in his concurring opinion131 in the Court’s 7-2 per curiam decision in Box v. Planned Parenthood of Indiana and Kentucky Inc.,132 which upheld Indiana’s law relating to the disposition of fetal remains by abortion providers. “At least 20 cases related to abortion are in the pipeline, any of which could be used by the five conservative justices to upend or otherwise roll back the core holding of Roe.”133 Meanwhile, Ginsburg, who is 86 and a three-time cancer survivor,134 continues with her regular, twice-weekly personal training sessions.135 “RBG is determined to stick around and remind her colleagues and the country of what she believes is America’s unfinished promise.”136 While in Jerusalem in July 2018 for a screening of the documentary RBG, she called “for bipartisanship in confirming federal judges” and “reiterated her longtime support for an equal rights amendment to the Constitution.”137

Pulling out her pocket copy of America’s foundational legal text, she spoke of her great-granddaughter, saying that she would like to tell her that “your equality is a fundamental tenet of the United States.” Both pleas made clear the continuity of Ginsburg’s commitment to equal justice. The struggle to repair the world never ceases.138

131 Hohmann, James, “The Daily 202: Sniping between Clarence Thomas and Ruth Bader Ginsburg foreshadows the abortion fights to come,” The Washington Post, May 29, 2019, https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2019/05/29/daily-202- sniping-between-clarence-thomas-and-ruth-bader-ginsburg-foreshadows-the-abortion-fights-to- come/5ced79fd1ad2e52231e8e829/?utm_term=.7195b3c11880.

132 2019 WL 2257160 (May 28, 2019).

133 Hohmann, supra note 130.

134 Biskupic, Joan, “Ruth Bader Ginsburg speaks out with an eye towards future of Roe v. Wade,” CNN, May 29, 2019, https://www.cnn.com/2019/05/29/politics/ruth-bader-ginsburg-supreme-court- abortion/index.html.

135 Id. See also Carmon, supra note 2, at 151.

136 Carmon, supra note 2, at 12.

137 De Hart, supra note 10, at 540.

138 Id. (emphasis added).

12 GINSBURG DISSENT GONZALES V. CARHART, 550 U.S. 124 (2007)

Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 844 (1992), the Court declared that “[l]iberty finds no refuge in a jurisprudence of doubt.” There was, the Court said, an “imperative” need to dispel doubt as to “the meaning and reach” of the Court’s 7- to-2 judgment, rendered nearly two decades earlier in Roe v. Wade, 410 U.S. 113 (1973). 505 U.S., at 845. Responsive to that need, the Court endeavored to provide secure guidance to “[s]tate and federal courts as well as legislatures throughout the Union,” by defining “the rights of the woman and the legitimate authority of the State respecting the termination of pregnancies by abortion procedures.” Ibid.

Taking care to speak plainly, the Casey Court restated and reaffirmed Roe’s essential holding. 505 U.S., at 845-846. First, the Court addressed the type of abortion regulation permissible prior to fetal viability. It recognized “the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State.” Id., at 846. Second, the Court acknowledged “the State’s power to restrict abortions after fetal viability, if the law contains exceptions for pregnancies which endanger the woman’s life or health.” Ibid. (emphasis added). Third, the Court confirmed that “the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Ibid. (emphasis added).

In reaffirming Roe, the Casey Court described the centrality of “the decision whether to bear . . . a child,” Eisenstadt v. Baird, 405 U.S. 438, 453 (1972), to a woman’s “dignity and autonomy,” her “personhood” and “destiny,” her “conception of . . . her place in society.” 505 U.S., at 851-852. Of signal importance here, the Casey Court stated with unmistakable clarity that state regulation of access to abortion procedures, even after viability, must protect “the health of the woman.” Id., at 846.

Seven years ago, in Stenberg v. Carhart, 530 U.S. 914 (2000), the Court invalidated a Nebraska statute criminalizing the performance of a medical procedure that, in the political arena, has been dubbed “partial-birth abortion.”1 With fidelity to the Roe-Casey line of precedent, the Court held the Nebraska statute unconstitutional in part because it lacked the requisite protection for the preservation of a woman’s health. Stenberg, 530 U.S., at 930; cf. Ayotte v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 327 (2006).

Today’s decision is alarming. It refuses to take Casey and Stenberg seriously. It tolerates, indeed applauds, federal intervention to ban nationwide a procedure found necessary and proper in certain cases by the American College of Obstetricians and Gynecologists (ACOG). It blurs the line, firmly drawn in Casey, between previability and postviability

1 The term “partial-birth abortion” is neither recognized in the medical literature nor used by physicians who perform second-trimester abortions. See Planned Parenthood Federation of Am. v. Ashcroft, 320 F.Supp.2d 957, 964 (N.D. Cal. 2004), aff’d, 435 F.3d 1163 (C.A.9 2006). The medical community refers to the procedure as either dilation & extraction (D&X) or intact dilation and evacuation (intact D&E). See, e.g., ante, at 5; Stenberg v. Carhart, 530 U.S. 914, 927 (2000).

13 abortions. And, for the first time since Roe, the Court blesses a prohibition with no exception safeguarding a woman’s health.

I dissent from the Court’s disposition. Retreating from prior rulings that abortion restrictions cannot be imposed absent an exception safeguarding a woman’s health, the Court upholds an Act that surely would not survive under the close scrutiny that previously attended state-decreed limitations on a woman’s reproductive choices.

As Casey comprehended, at stake in cases challenging abortion restrictions is a woman’s “control over her [own] destiny.” 505 U.S., at 869 (plurality opinion). See also id., at 852 (majority opinion).2 “There was a time, not so long ago,” when women were “regarded as the center of home and family life, with attendant special responsibilities that precluded full and independent legal status under the Constitution.” Id., at 896-897 (quoting Hoyt v. Florida, 368 U.S. 57, 62 (1961)). Those views, this Court made clear in Casey, “are no longer consistent with our understanding of the family, the individual, or the Constitution.” 505 U.S., at 897. Women, it is now acknowledged, have the talent, capacity, and right “to participate equally in the economic and social life of the Nation.” Id., at 856. Their ability to realize their full potential, the Court recognized, is intimately connected to “their ability to control their reproductive lives.” Ibid. Thus, legal challenges to undue restrictions on abortion procedures do not seek to vindicate some generalized notion of privacy; rather, they center on a woman’s autonomy to determine her life’s course, and thus to enjoy equal citizenship stature. See, e.g., Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261 (1992); Law, Rethinking Sex and the Constitution, 132 U. Pa. L. Rev. 955, 1002-1028 (1984).

In keeping with this comprehension of the right to reproductive choice, the Court has consistently required that laws regulating abortion, at any stage of pregnancy and in all cases, safeguard a woman’s health. See, e.g., Ayotte, 546 U.S., at 327-328 (“[O]ur precedents hold … that a State may not restrict access to abortions that are necessary, in appropriate medical judgment, for preservation of the life or health of the [woman].” (quoting Casey, 505 U.S., at 879 (plurality opinion))); Stenberg, 530 U.S., at 930 (“Since the law requires a health exception in order to validate even a postviability abortion regulation, it at a minimum requires the same in respect to previability regulation.”). See also Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 768-769 (1986) (invalidating a post-viability abortion regulation for “fail[ure] to require that [a pregnant woman’s] health be the physician’s paramount consideration”).

We have thus ruled that a State must avoid subjecting women to health risks not only where the pregnancy itself creates danger, but also where state regulation forces women to resort to less safe methods of abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 79 (1976) (holding unconstitutional a ban on a method of abortion that “force[d] a woman … to terminate her pregnancy by methods more dangerous to her

2 Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 851-852 (1992), described more precisely than did Roe v. Wade, 410 U.S. 113 (1973), the impact of abortion restrictions on women’s liberty. Roe’s focus was in considerable measure on “vindicat[ing] the right of the physician to administer medical treatment according to his professional judgment.” Id., at 165.

14 health”). See also Stenberg, 530 U.S., at 931 (“[Our cases] make clear that a risk to . . . women’s health is the same whether it happens to arise from regulating a particular method of abortion, or from barring abortion entirely.”). Indeed, we have applied the rule that abortion regulation must safeguard a woman’s health to the particular procedure at issue here – intact dilation and evacuation (D&E).3

In Stenberg, we expressly held that a statute banning intact D&E was unconstitutional in part because it lacked a health exception. 530 U.S., at 930, 937. We noted that there existed a “division of medical opinion” about the relative safety of intact D&E, id., at 937, but we made clear that as long as “substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health,” a health exception is required, id., at 938. We explained:

“The word ‘necessary’ in Casey’s phrase ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the [pregnant woman],’ cannot refer to an absolute necessity or to absolute proof. Medical treatments and procedures are often considered appropriate (or inappropriate) in light of estimated comparative health risks (and health benefits) in particular cases. Neither can that phrase require unanimity of medical opinion. Doctors often differ in their estimation of comparative health risks and appropriate treatment. And Casey’s words ‘appropriate medical judgment’ must embody the judicial need to tolerate responsible differences of medical opinion ….” Id., at 937 (citation omitted).

Thus, we reasoned, division in medical opinion “at most means uncertainty, a factor that signals the presence of risk, not its absence.” Ibid. “[A] statute that altogether forbids [intact D&E] . . . . consequently must contain a health exception.” Id., at 938. See also id., at 948

3 Dilation and evacuation (D&E) is the most frequently used abortion procedure during the second trimester of pregnancy; intact D&E is a variant of the D&E procedure. See ante, at 4, 6; Stenberg, 530 U.S., at 924, 927; Planned Parenthood, 320 F.Supp.2d, at 966. Second-trimester abortions (i.e., midpregnancy, previability abortions) are, however, relatively uncommon. Between 85 and 90 percent of all abortions performed in the United States take place during the first three months of pregnancy. See ante, at 3. See also Stenberg, 530 U.S., at 923-927; National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436, 464 (S.D.N.Y. 2004), aff’d sub nom. National Abortion Federation v. Gonzales, 437 F.3d 278 (CA2 2006); Planned Parenthood, 320 F.Supp.2d, at 960, and n. 4.

Adolescents and indigent women, research suggests, are more likely than other women to have difficulty obtaining an abortion during the first trimester of pregnancy. Minors may be unaware they are pregnant until relatively late in pregnancy, while poor women’s financial constraints are an obstacle to timely receipt of services. See Finer, Frohwirth, Dauphinee, Singh, & Moore, Timing of Steps and Reasons for Delays in Obtaining Abortions in the United States, 74 Contraception 334, 341-343 (2006). See also Drey et al., Risk Factors Associated with Presenting for Abortion in the Second Trimester, 107 Obstetrics & Gynecology 128, 133 (Jan. 2006) (concluding that women who have second-trimester abortions typically discover relatively late that they are pregnant). Severe fetal anomalies and health problems confronting the pregnant woman are also causes of second- trimester abortions; many such conditions cannot be diagnosed or do not develop until the second trimester. See, e.g., Finer, supra, at 344; F. Cunningham et al., Williams Obstetrics 242, 290, 328- 329, (22d ed. 2005); cf. Schechtman, Gray, Baty, & Rothman, Decision-Making for Termination of Pregnancies with Fetal Anomalies: Analysis of 53,000 Pregnancies, 99 Obstetrics & Gynecology 216, 220-221 (Feb. 2002) (nearly all women carrying fetuses with the most serious central nervous system anomalies chose to abort their pregnancies).

(O’Connor, J., concurring) (“Th[e] lack of a health exception necessarily renders the statute unconstitutional.”).

In 2003, a few years after our ruling in Stenberg, Congress passed the Partial-Birth Abortion Ban Act – without an exception for women’s health. See 18 U.S.C. §1531(a) (2000 ed., Supp. IV).4 The congressional findings on which the Partial-Birth Abortion Ban Act rests do not withstand inspection, as the lower courts have determined and this Court is obliged to concede. Ante, at 35-36. See National Abortion Federation v. Ashcroft, 330 F.Supp.2d 436, 482 (S.D.N.Y. 2004) (“Congress did not … carefully consider the evidence before arriving at its findings.”), aff’d sub nom. National Abortion Federation v. Gonzales, 437 F.3d 278 (C.A.2 2006). See also Planned Parenthood Federation of Am. v. Ashcroft, 320 F.Supp.2d 957, 1019 (N.D. Cal. 2004) (“[N]one of the six physicians who testified before Congress had ever performed an intact D&E. Several did not provide abortion services at all; and one was not even an obgyn…. [T]he oral testimony before Congress was not only unbalanced, but intentionally polemic.”), aff’d, 435 F.3d 1163 (C.A.9 2006); Carhart v. Ashcroft, 331 F.Supp.2d 805, 1011 (Neb. 2004) (“Congress arbitrarily relied upon the opinions of doctors who claimed to have no (or very little) recent and relevant experience with surgical abortions, and disregarded the views of doctors who had significant and relevant experience with those procedures.”), aff’d, 413 F.3d 791 (C.A.8 2005).

Many of the Act’s recitations are incorrect. See ante, at 35-36. For example, Congress determined that no medical schools provide instruction on intact D&E. §2(14)(B), 117 Stat. 1204, notes following 18 U.S.C. §1531 (2000 ed., Supp. IV), p. 769, ¶(14)(B) (Congressional Findings). But in fact, numerous leading medical schools teach the procedure. See Planned Parenthood, 320 F.Supp.2d, at 1029; National Abortion Federation, 330 F.Supp.2d, at 479. See also Brief for ACOG as Amicus Curiae 18 (“Among the schools that now teach the intact variant are Columbia, Cornell, Yale, New York University, Northwestern, University of Pittsburgh, University of Pennsylvania, University of Rochester, and University of Chicago.”).

More important, Congress claimed there was a medical consensus that the banned procedure is never necessary. Congressional Findings (1), in notes following 18 U.S.C. §1531 (2000 ed., Supp. IV), p. 767. But the evidence “very clearly demonstrate[d] the opposite.” Planned Parenthood, 320 F.Supp.2d, at 1025. See also Carhart, 331 F.Supp.2d, at 1008-1009 (“[T]here was no evident consensus in the record that Congress compiled. There was, however, a substantial body of medical opinion presented to Congress in opposition. If anything … the congressional record establishes that there was a ‘consensus’ in favor of the banned procedure.”); National Abortion Federation, 330 F.Supp.2d, at 488 (“The congressional record itself undermines [Congress’] finding” that there is a medical consensus that intact D&E “is never medically necessary and should be prohibited.” (internal quotation marks omitted)).

4 The Act’s sponsors left no doubt that their intention was to nullify our ruling in Stenberg, 530 U.S. 914. See, e.g., 149 Cong. Rec. 5731 (2003) (statement of Sen. Santorum) (“Why are we here? We are here because the Supreme Court defended the indefensible…. We have responded to the Supreme Court.”). See also 148 Cong. Rec. 14273 (2002) (statement of Rep. Linder) (rejecting proposition that Congress has “no right to legislate a ban on this horrible practice because the Supreme Court says [it] cannot”).

Similarly, Congress found that “[t]here is no credible medical evidence that partial-birth abortions are safe or are safer than other abortion procedures.” Congressional Findings (14)(B), in notes following 18 U.S.C. §1531 (2000 ed., Supp. IV), p. 769. But the congressional record includes letters from numerous individual physicians stating that pregnant women’s health would be jeopardized under the Act, as well as statements from nine professional associations, including ACOG, the American Public Health Association, and the California Medical Association, attesting that intact D&E carries meaningful safety advantages over other methods. See National Abortion Federation, 330 F.Supp.2d, at 490. See also Planned Parenthood, 320 F.Supp.2d, at 1021 (“Congress in its findings . . . chose to disregard the statements by ACOG and other medical organizations.”). No comparable medical groups supported the ban. In fact, “all of the government’s own witnesses disagreed with many of the specific congressional findings.” Id., at 1024.

In contrast to Congress, the District Courts made findings after full trials at which all parties had the opportunity to present their best evidence. The courts had the benefit of “much more extensive medical and scientific evidence . . . concerning the safety and necessity of intact D&Es.” Planned Parenthood, 320 F.Supp.2d, at 1014; cf. National Abortion Federation, 330 F.Supp.2d, at 482 (District Court “heard more evidence during its trial than Congress heard over the span of eight years.”).

During the District Court trials, “numerous” “extraordinarily accomplished” and “very experienced” medical experts explained that, in certain circumstances and for certain women, intact D&E is safer than alternative procedures and necessary to protect women’s health. Carhart, 331 F. Supp.2d, at 1024-1027; see Planned Parenthood, 320 F.Supp.2d, at 1001 (“[A]ll of the doctors who actually perform intact D&Es concluded that in their opinion and clinical judgment, intact D&Es remain the safest option for certain individual women under certain individual health circumstances, and are significantly safer for these women than other abortion techniques, and are thus medically necessary.”); cf. ante, at 31 (“Respondents presented evidence that intact D&E may be the safest method of abortion, for reasons similar to those adduced in Stenberg.”).

According to the expert testimony plaintiffs introduced, the safety advantages of intact D&E are marked for women with certain medical conditions, for example, uterine scarring, bleeding disorders, heart disease, or compromised immune systems. See Carhart, 331 F.Supp.2d, at 924-929, 1026-1027; National Abortion Federation, 330 F.Supp.2d, at 472- 473; Planned Parenthood, 320 F.Supp.2d, at 992-994, 1001. Further, plaintiffs’ experts testified that intact D&E is significantly safer for women with certain pregnancy-related conditions, such as placenta previa and accreta, and for women carrying fetuses with certain abnormalities, such as severe hydrocephalus. See Carhart, 331 F.Supp.2d, at 924, 1026-1027; National Abortion Federation, 330 F.Supp.2d, at 473-474; Planned Parenthood, 320 F.Supp.2d, at 992-994, 1001. See also Stenberg, 530 U.S., at 929; Brief for ACOG as Amicus Curiae 2, 13-16.

Intact D&E, plaintiffs’ experts explained, provides safety benefits over D&E by dismemberment for several reasons: First, intact D&E minimizes the number of times a physician must insert instruments through the cervix and into the uterus, and thereby reduces the risk of trauma to, and perforation of, the cervix and uterus – the most serious complication associated with nonintact D&E. See Carhart, 331 F.Supp.2d, at 923-928, 1025; National Abortion Federation, 330 F.Supp.2d, at 471; Planned Parenthood, 320

F.Supp.2d, at 982, 1001. Second, removing the fetus intact, instead of dismembering it in utero, decreases the likelihood that fetal tissue will be retained in the uterus, a condition that can cause infection, hemorrhage, and infertility. See Carhart, 331 F.Supp.2d, at 923- 928, 1025-1026; National Abortion Federation, 330 F.Supp.2d, at 472; Planned Parenthood, 320 F.Supp.2d, at 1001. Third, intact D&E diminishes the chances of exposing the patient’s tissues to sharp bony fragments sometimes resulting from dismemberment of the fetus. See Carhart, 331 F.Supp.2d, at 923-928, 1026; National Abortion Federation, 330 F.Supp.2d, at 471; Planned Parenthood, 320 F.Supp.2d, at 1001. Fourth, intact D&E takes less operating time than D&E by dismemberment, and thus may reduce bleeding, the risk of infection, and complications relating to anesthesia. See Carhart, 331 F.Supp.2d, at 923-928, 1026; National Abortion Federation, 330 F.Supp.2d, at 472; Planned Parenthood, 320 F.Supp.2d, at 1001. See also Stenberg, 530 U.S., at 928-929, 932; Brief for ACOG as Amicus Curiae 2, 11-13.

Based on thoroughgoing review of the trial evidence and the congressional record, each of the District Courts to consider the issue rejected Congress’ findings as unreasonable and not supported by the evidence. See Carhart, 331 F.Supp.2d, at 1008-1027; National Abortion Federation, 330 F.Supp.2d, at 482, 488-491; Planned Parenthood, 320 F.Supp.2d, at 1032. The trial courts concluded, in contrast to Congress’ findings, that “significant medical authority supports the proposition that in some circumstances, [intact D&E] is the safest procedure.” Id., at 1033 (quoting Stenberg, 530 U.S., at 932); accord Carhart, 331 F.Supp.2d, at 1008-1009, 1017-1018; National Abortion Federation, 330 F.Supp.2d, at 480-482;5 cf. Stenberg, 530 U.S., at 932 (“[T]he record shows that significant medical authority supports the proposition that in some circumstances, [intact D&E] would be the safest procedure.”).

The District Courts’ findings merit this Court’s respect. See, e.g., Fed. Rule Civ. Proc. 52(a); Salve Regina College v. Russell, 499 U.S. 225, 233 (1991). Today’s opinion supplies no reason to reject those findings. Nevertheless, despite the District Courts’ appraisal of the weight of the evidence, and in undisguised conflict with Stenberg, the Court asserts that the Partial-Birth Abortion Ban Act can survive “when … medical uncertainty persists.” Ante, at 33. This assertion is bewildering. Not only does it defy the Court’s longstanding precedent affirming the necessity of a health exception, with no carve-out for circumstances of medical uncertainty, see supra, at 4-5; it gives short shrift to the records before us, carefully canvassed by the District Courts. Those records indicate that “the majority of highly-qualified experts on the subject believe intact D&E to be the safest, most appropriate procedure under certain circumstances.” Planned Parenthood, 320 F.Supp.2d, at 1034. See supra, at 9-10.

The Court acknowledges some of this evidence, ante, at 31, but insists that, because some witnesses disagreed with the ACOG and other experts’ assessment of risk, the Act can stand. Ante, at 32-33, 37. In this insistence, the Court brushes under the rug the

5 Even the District Court for the Southern District of New York, which was more skeptical of the health benefits of intact D&E, see ante, at 32, recognized: “[T]he Government’s own experts disagreed with almost all of Congress’s factual findings”; a “significant body of medical opinion” holds that intact D&E has safety advantages over nonintact D&E; “[p]rofessional medical associations have also expressed their view that [intact D&E] may be the safest procedure for some women”; and “[t]he evidence indicates that the same disagreement among experts found by the Supreme Court in Stenberg existed throughout the time that Congress was considering the legislation, despite Congress’s findings to the contrary.” National Abortion Federation, 330 F.Supp.2d, at 480-482.

District Courts’ well-supported findings that the physicians who testified that intact D&E is never necessary to preserve the health of a woman had slim authority for their opinions. They had no training for, or personal experience with, the intact D&E procedure, and many performed abortions only on rare occasions. See Planned Parenthood, 320 F.Supp.2d, at 980; Carhart, 331 F.Supp.2d, at 1025; cf. National Abortion Federation, 330 F.Supp.2d, at 462-464. Even indulging the assumption that the Government witnesses were equally qualified to evaluate the relative risks of abortion procedures, their testimony could not erase the “significant medical authority support[ing] the proposition that in some circumstances, [intact D&E] would be the safest procedure.” Stenberg, 530 U.S., at 932.6

The Court offers flimsy and transparent justifications for upholding a nationwide ban on intact D&E sans any exception to safeguard a women’s health. Today’s ruling, the Court declares, advances “a premise central to [Casey’s] conclusion” – i.e., the Government’s “legitimate and substantial interest in preserving and promoting fetal life.” Ante, at 14. See also ante, at 15 (“[W]e must determine whether the Act furthers the legitimate interest of the Government in protecting the life of the fetus that may become a child.”). But the Act scarcely furthers that interest: The law saves not a single fetus from destruction, for it targets only a method of performing abortion. See Stenberg, 530 U.S., at 930. And surely the statute was not designed to protect the lives or health of pregnant women. Id., at 951 (Ginsburg, J., concurring); cf. Casey, 505 U.S., at 846 (recognizing along with the State’s legitimate interest in the life of the fetus, its “legitimate interes[t] … in protecting the health of the woman” (emphasis added)). In short, the Court upholds a law that, while doing nothing to “preserv[e] … fetal life,” ante, at 14, bars a woman from choosing intact D&E although her doctor “reasonably believes [that procedure] will best protect [her].” Stenberg, 530 U.S., at 946 (Stevens, J., concurring).

As another reason for upholding the ban, the Court emphasizes that the Act does not proscribe the nonintact D&E procedure. See ante, at 34. But why not, one might ask. Nonintact D&E could equally be characterized as “brutal,” ante, at 26, involving as it does “tear[ing] [a fetus] apart” and “ripp[ing] off” its limbs, ante, at 4, 6. “[T]he notion that either of these two equally gruesome procedures … is more akin to infanticide than the other, or

6 The majority contends that “[i]f the intact D&E procedure is truly necessary in some circumstances, it appears likely an injection that kills the fetus is an alternative under the Act that allows the doctor to perform the procedure.” Ante, at 34-35. But a “significant body of medical opinion believes that inducing fetal death by injection is almost always inappropriate to the preservation of the health of women undergoing abortion because it poses tangible risk and provides no benefit to the woman.” Carhart v. Ashcroft, 331 F.Supp.2d 805, 1028 (Neb. 2004) (internal quotation marks omitted), aff’d, 413 F.3d 791 (C.A.8 2005). In some circumstances, injections are “absolutely [medically] contraindicated.” 331 F.Supp.2d, at 1027. See also id., at 907- 912; National Abortion Federation, 330 F.Supp.2d, at 474-475; Planned Parenthood, 320 F.Supp.2d, at 995-997. The Court also identifies medical induction of labor as an alternative. See ante, at 9. That procedure, however, requires a hospital stay, ibid., rendering it inaccessible to patients who lack financial resources, and it too is considered less safe for many women, and impermissible for others. See Carhart, 331 F.Supp.2d, at 940-949, 1017; National Abortion Federation, 330 F.Supp.2d, at 468-470; Planned Parenthood, 320 F.Supp.2d, at 961, n. 5, 992- 994, 1000-1002.

19 that the State furthers any legitimate interest by banning one but not the other, is simply irrational.” Stenberg, 530 U.S., at 946-947 (Stevens, J., concurring).

Delivery of an intact, albeit nonviable, fetus warrants special condemnation, the Court maintains, because a fetus that is not dismembered resembles an infant. Ante, at 28. But so, too, does a fetus delivered intact after it is terminated by injection a day or two before the surgical evacuation, ante, at 5, 34-35, or a fetus delivered through medical induction or cesarean, ante, at 9. Yet, the availability of those procedures – along with D&E by dismemberment – the Court says, saves the ban on intact D&E from a declaration of unconstitutionality. Ante, at 34-35. Never mind that the procedures deemed acceptable might put a woman’s health at greater risk. See supra, at 13, and n. 6; cf. ante, at 5, 31- 32.

Ultimately, the Court admits that “moral concerns” are at work, concerns that could yield prohibitions on any abortion. See ante, at 28 (“Congress could … conclude that the type of abortion proscribed by the Act requires specific regulation because it implicates additional ethical and moral concerns that justify a special prohibition.”). Notably, the concerns expressed are untethered to any ground genuinely serving the Government’s interest in preserving life. By allowing such concerns to carry the day and case, overriding fundamental rights, the Court dishonors our precedent. See, e.g., Casey, 505 U.S., at 850 (“Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code.”); Lawrence v. Texas, 539 U.S. 558, 571 (2003) (Though “[f]or many persons [objections to homosexual conduct] are not trivial concerns but profound and deep convictions accepted as ethical and moral principles,” the power of the State may not be used “to enforce these views on the whole society through operation of the criminal law.” (citing Casey, 505 U.S., at 850)).

Revealing in this regard, the Court invokes an antiabortion shibboleth for which it concededly has no reliable evidence: Women who have abortions come to regret their choices, and consequently suffer from “[s]evere depression and loss of esteem.” Ante, at 29.7 Because of women’s fragile emotional state and because of the “bond of love the

7 The Court is surely correct that, for most women, abortion is a painfully difficult decision. See ante, at 28. But “neither the weight of the scientific evidence to date nor the observable reality of 33 years of legal abortion in the United States comports with the idea that having an abortion is any more dangerous to a woman’s long-term mental health than delivering and parenting a child that she did not intend to have ….” Cohen, Abortion and Mental Health: Myths and Realities, 9 Guttmacher Policy Rev. 8 (2006); see generally Bazelon, Is There a Post-Abortion Syndrome? N.Y. Times Magazine, Jan. 21, 2007, p. 40. See also, e.g., American Psychological Association, APA Briefing Paper on the Impact of Abortion (2005) (rejecting theory of a postabortion syndrome and stating that “[a]ccess to legal abortion to terminate an unwanted pregnancy is vital to safeguard both the physical and mental health of women”); Schmiege & Russo, Depression and Unwanted First Pregnancy: Longitudinal Cohort Study, 331 British Medical J. 1303 (2005) (finding no credible evidence that choosing to terminate an unwanted first pregnancy contributes to risk of subsequent depression); Gilchrist, Hannaford, Frank, & Kay, Termination of Pregnancy and Psychiatric Morbidity, 167 British J. of Psychiatry 243, 247-248 (1995) (finding, in a cohort of more than 13,000 women, that the rate of psychiatric disorder was no higher among women who terminated pregnancy than among those who carried pregnancy to term); Stodland, The Myth of the Abortion Trauma Syndrome, 268 JAMA 2078, 2079 (1992) (“Scientific studies indicate that legal abortion results in fewer deleterious sequelae for women compared with other possible outcomes of unwanted pregnancy. There is no evidence of an abortion trauma syndrome.”); American Psychological Association, Council Policy Manual: (N)(I)(3), Public Interest (1989) (declaring

20 mother has for her child,” the Court worries, doctors may withhold information about the nature of the intact D&E procedure. Ante, at 28-29.8 The solution the Court approves, then, is not to require doctors to inform women, accurately and adequately, of the different procedures and their attendant risks. Cf. Casey, 505 U.S., at 873 (plurality opinion) (“States are free to enact laws to provide a reasonable framework for a woman to make a decision that has such profound and lasting meaning.”). Instead, the Court deprives women of the right to make an autonomous choice, even at the expense of their safety.9

This way of thinking reflects ancient notions about women’s place in the family and under the Constitution – ideas that have long since been discredited. Compare, e.g., Muller v. Oregon, 208 U.S. 412, 422-423 (1908) (“protective” legislation imposing hours-of-work limitations on women only held permissible in view of women’s “physical structure and a proper discharge of her maternal funct[ion]”); Bradwell v. State, 16 Wall. 130, 141 (1873) (Bradley, J., concurring) (“Man is, or should be, woman’s protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. … The paramount destiny and mission of woman are to fulfil[l] the noble and benign offices of wife and mother.”), with United States v. assertions about widespread severe negative psychological effects of abortion to be “without fact”). But see Cougle, Reardon, & Coleman, Generalized Anxiety Following Unintended Pregnancies Resolved Through Childbirth and Abortion: A Cohort Study of the 1995 National Survey of Family Growth, 19 J. Anxiety Disorders 137, 142 (2005) (advancing theory of a postabortion syndrome but acknowledging that “no causal relationship between pregnancy outcome and anxiety could be determined” from study); Reardon et al., Psychiatric Admissions of Low-Income Women following Abortion and Childbirth, 168 Canadian Medical Assn. J. 1253, 1255-1256 (May 13, 2003) (concluding that psychiatric admission rates were higher for women who had an abortion compared with women who delivered); cf. Major, Psychological Implications of Abortion –Highly Charged and Rife with Misleading Research, 168 Canadian Medical Assn. J. 1257, 1258 (May 13, 2003) (critiquing Reardon study for failing to control for a host of differences between women in the delivery and abortion samples).

8 Notwithstanding the “bond of love” women often have with their children, see ante, at 28, not all pregnancies, this Court has recognized, are wanted, or even the product of consensual activity. See Casey, 505 U.S., at 891 (“[O]n an average day in the United States, nearly 11,000 women are severely assaulted by their male partners. Many of these incidents involve sexual assault.”). See also Glander, Moore, Michielutte, & Parsons, The Prevalence of Domestic Violence Among Women Seeking Abortion, 91 Obstetrics & Gynecology 1002 (1998); Holmes, Resnick, Kilpatrick, & Best, Rape-Related Pregnancy; Estimates and Descriptive Characteristics from a National Sample of Women, 175 Am. J. Obstetrics & Gynecology 320 (Aug. 1996).

9 Eliminating or reducing women’s reproductive choices is manifestly not a means of protecting them. When safe abortion procedures cease to be an option, many women seek other means to end unwanted or coerced pregnancies. See, e.g., World Health Organization, Unsafe Abortion: Global and Regional Estimates of the Incidence of Unsafe Abortion and Associated Mortality in 2000, pp. 3, 16 (4th ed. 2004) (“Restrictive legislation is associated with a high incidence of unsafe abortion” worldwide; unsafe abortion represents 13% of all “maternal” deaths); Henshaw, Unintended Pregnancy and Abortion: A Public Health Perspective, in A Clinician’s Guide to Medical and Surgical Abortion 11, 19 (M. Paul, E. Lichtenberg, L. Borgatta, D. Grimes, & P. Stubblefield eds. 1999) (“Before legalization, large numbers of women in the United States died from unsafe abortions.”); H. Boonstra, R. Gold, C. Richards, & L. Finer, Abortion in Women’s Lives 13, and fig. 2.2 (2006) (“as late as 1965, illegal abortion still accounted for an estimated … 17% of all officially reported pregnancy-related deaths”; “[d]eaths from abortion declined dramatically after legalization”).

Virginia, 518 U.S. 515, 533, 542, n. 12 (1996) (State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have … impeded … women’s progress toward full citizenship stature throughout our Nation’s history”); Califano v. Goldfarb, 430 U.S. 199, 207 (1977) (gender- based Social Security classification rejected because it rested on “archaic and overbroad generalizations” “such as assumptions as to [women’s] dependency” (internal quotation marks omitted)).

Though today’s majority may regard women’s feelings on the matter as “self-evident,” ante, at 29, this Court has repeatedly confirmed that “[t]he destiny of the woman must be shaped … on her own conception of her spiritual imperatives and her place in society.” Casey, 505 U.S., at 852. See also id., at 877 (plurality opinion) (“[M]eans chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it.”); supra, at 3-4.

In cases on a “woman’s liberty to determine whether to [continue] her pregnancy,” this Court has identified viability as a critical consideration. See Casey, 505 U.S., at 869-870 (plurality opinion). “[T]here is no line [more workable] than viability,” the Court explained in Casey, for viability is “the time at which there is a realistic possibility of maintaining and nourishing a life outside the womb, so that the independent existence of the second life can in reason and all fairness be the object of state protection that now overrides the rights of the woman. … In some broad sense it might be said that a woman who fails to act before viability has consented to the State’s intervention on behalf of the developing child.” Id., at 870.

Today, the Court blurs that line, maintaining that “[t]he Act [legitimately] appl[ies] both previability and postviability because … a fetus is a living organism while within the womb, whether or not it is viable outside the womb.” Ante, at 17. Instead of drawing the line at viability, the Court refers to Congress’ purpose to differentiate “abortion and infanticide” based not on whether a fetus can survive outside the womb, but on where a fetus is anatomically located when a particular medical procedure is performed. See ante, at 28 (quoting Congressional Findings (14)(G), in notes following 18 U.S.C. §1531 (2000 ed., Supp. IV), p. 769).

One wonders how long a line that saves no fetus from destruction will hold in face of the Court’s “moral concerns.” See supra, at 15; cf. ante, at 16 (noting that “[i]n this litigation” the Attorney General “does not dispute that the Act would impose an undue burden if it covered standard D&E”). The Court’s hostility to the right Roe and Casey secured is not concealed. Throughout, the opinion refers to obstetrician-gynecologists and surgeons who perform abortions not by the titles of their medical specialties, but by the pejorative label “abortion doctor.” Ante, at 14, 24, 25, 31, 33. A fetus is described as an “unborn child,” and as a “baby,” ante, at 3, 8; second-trimester, previability abortions are referred to as “late-term,” ante, at 26; and the reasoned medical judgments of highly trained doctors are dismissed as “preferences” motivated by “mere convenience,” ante, at 3, 37. Instead of the heightened scrutiny we have previously applied, the Court determines that a “rational” ground is enough to uphold the Act, ante, at 28, 37. And, most troubling, Casey’s principles, confirming the continuing vitality of “the essential holding of Roe,” are merely “assume[d]” for the moment, ante, at 15, 31, rather than “retained” or “reaffirmed,” Casey, 505 U.S., at 846.

III

The Court further confuses our jurisprudence when it declares that “facial attacks” are not permissible in “these circumstances,” i.e., where medical uncertainty exists. Ante, at 37; see ibid. (“In an as-applied challenge the nature of the medical risk can be better quantified and balanced than in a facial attack.”). This holding is perplexing given that, in materially identical circumstances we held that a statute lacking a health exception was unconstitutional on its face. Stenberg, 530 U.S., at 930; see id., at 937 (in facial challenge, law held unconstitutional because “significant body of medical opinion believes [the] procedure may bring with it greater safety for some patients” (emphasis added)). See also Sabri v. United States, 541 U.S. 600, 609-610 (2004) (identifying abortion as one setting in which we have recognized the validity of facial challenges); Fallon, Making Sense of Overbreadth, 100 Yale L. J. 853, 859, n. 29 (1991) (“[V]irtually all of the abortion cases reaching the Supreme Court since Roe v. Wade, 410 U.S. 113 (1973), have involved facial attacks on state statutes, and the Court, whether accepting or rejecting the challenges on the merits, has typically accepted this framing of the question presented.”). Accord Fallon, As-Applied and Facial Challenges and Third-Party Standing, 113 Harv. L. Rev. 1321, 1356 (2000); Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 271- 276 (1994).

Without attempting to distinguish Stenberg and earlier decisions, the majority asserts that the Act survives review because respondents have not shown that the ban on intact D&E would be unconstitutional “in a large fraction of relevant cases.” Ante, at 38 (citing Casey, 505 U.S., at 895). But Casey makes clear that, in determining whether any restriction poses an undue burden on a “large fraction” of women, the relevant class is not “all women,” nor “all pregnant women,” nor even all women “seeking abortions.” 505 U.S., at 895. Rather, a provision restricting access to abortion, “must be judged by reference to those [women] for whom it is an actual rather than an irrelevant restriction,” ibid. Thus the absence of a health exception burdens all women for whom it is relevant – women who, in the judgment of their doctors, require an intact D&E because other procedures would place their health at risk.10 Cf. Stenberg, 530 U.S., at 934 (accepting the “relative rarity” of medically indicated intact D&Es as true but not “highly relevant” – for “the health exception question is whether protecting women’s health requires an exception for those infrequent occasions”); Ayotte, 546 U.S., at 328 (facial challenge entertained where “[i]n some very small percentage of cases … women … need immediate abortions to avert serious, and often irreversible damage to their health”). It makes no sense to conclude that this facial challenge fails because respondents have not shown that a health exception is necessary for a large fraction of second-trimester abortions, including those for which a health exception is unnecessary: The very purpose of a health exception is to protect women in exceptional cases.

If there is anything at all redemptive to be said of today’s opinion, it is that the Court is not willing to foreclose entirely a constitutional challenge to the Act. “The Act is open,” the

10 There is, in short, no fraction because the numerator and denominator are the same: The health exception reaches only those cases where a woman’s health is at risk. Perhaps for this reason, in mandating safeguards for women’s health, we have never before invoked the “large fraction” test.

Court states, “to a proper as-applied challenge in a discrete case.” Ante, at 38; see ante, at 37 (“The Government has acknowledged that preenforcement, as-applied challenges to the Act can be maintained.”). But the Court offers no clue on what a “proper” lawsuit might look like. See ante, at 37-38. Nor does the Court explain why the injunctions ordered by the District Courts should not remain in place, trimmed only to exclude instances in which another procedure would safeguard a woman’s health at least equally well. Surely the Court cannot mean that no suit may be brought until a woman’s health is immediately jeopardized by the ban on intact D&E. A woman “suffer[ing] from medical complications,” ante, at 38, needs access to the medical procedure at once and cannot wait for the judicial process to unfold. See Ayotte, 546 U.S., at 328.

The Court appears, then, to contemplate another lawsuit by the initiators of the instant actions. In such a second round, the Court suggests, the challengers could succeed upon demonstrating that “in discrete and well-defined instances a particular condition has or is likely to occur in which the procedure prohibited by the Act must be used.” Ante, at 37. One may anticipate that such a preenforcement challenge will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.

The Court envisions that in an as-applied challenge, “the nature of the medical risk can be better quantified and balanced.” Ibid. But it should not escape notice that the record already includes hundreds and hundreds of pages of testimony identifying “discrete and well-defined instances” in which recourse to an intact D&E would better protect the health of women with particular conditions. See supra, at 10-11. Record evidence also documents that medical exigencies, unpredictable in advance, may indicate to a well- trained doctor that intact D&E is the safest procedure. See ibid. In light of this evidence, our unanimous decision just one year ago in Ayotte counsels against reversal. See 546 U.S., at 331 (remanding for reconsideration of the remedy for the absence of a health exception, suggesting that an injunction prohibiting unconstitutional applications might suffice).

The Court’s allowance only of an “as-applied challenge in a discrete case,” ante, at 38 – jeopardizes women’s health and places doctors in an untenable position. Even if courts were able to carve-out exceptions through piecemeal litigation for “discrete and well- defined instances,” ante, at 37, women whose circumstances have not been anticipated by prior litigation could well be left unprotected. In treating those women, physicians would risk criminal prosecution, conviction, and imprisonment if they exercise their best judgment as to the safest medical procedure for their patients. The Court is thus gravely mistaken to conclude that narrow as-applied challenges are “the proper manner to protect the health of the woman.” Cf. ibid.

As the Court wrote in Casey, “overruling Roe’s central holding would not only reach an unjustifiable result under principles of stare decisis, but would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.” 505 U.S., at 865. “[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.” Id., at 854. See also id., at 867 (“[T]o overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.”).

Though today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of “the rule of law” and the “principles of stare decisis.” Congress imposed a ban despite our clear prior holdings that the State cannot proscribe an abortion procedure when its use is necessary to protect a woman’s health. See supra, at 7, n. 4. Although Congress’ findings could not withstand the crucible of trial, the Court defers to the legislative override of our Constitution-based rulings. See supra, at 7-9. A decision so at odds with our jurisprudence should not have staying power.

In sum, the notion that the Partial-Birth Abortion Ban Act furthers any legitimate governmental interest is, quite simply, irrational. The Court’s defense of the statute provides no saving explanation. In candor, the Act, and the Court’s defense of it, cannot be understood as anything other than an effort to chip away at a right declared again and again by this Court – and with increasing comprehension of its centrality to women’s lives. See supra, at 3, n. 2; supra, at 7, n. 4. When “a statute burdens constitutional rights and all that can be said on its behalf is that it is the vehicle that legislators have chosen for expressing their hostility to those rights, the burden is undue.” Stenberg, 530 U.S., at 952 (Ginsburg, J., concurring) (quoting Hope Clinic v. Ryan, 195 F.3d 857, 881 (C.A.7 1999) (Posner, C. J., dissenting)).

* * *

For the reasons stated, I dissent from the Court’s disposition and would affirm the judgments before us for review.

GINSBURG DISSENT LEDBETTER V. GOODYEAR TIRE & RUBBER CO., 550 U.S. 618 (2007)

Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber’s plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter’s salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236. See 421 F. 3d 1169, 1174 (C.A.11 2005); Brief for Petitioner 4.

Ledbetter launched charges of discrimination before the Equal Employment Opportunity Commission (EEOC) in March 1998. Her formal administrative complaint specified that, in violation of Title VII, Goodyear paid her a discriminatorily low salary because of her sex. See 42 U.S.C. §2000e-2(a)(1) (rendering it unlawful for an employer “to discriminate against any individual with respect to [her] compensation … because of such individual’s … sex”). That charge was eventually tried to a jury, which found it “more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex.” App. 102. In accord with the jury’s liability determination, the District Court entered judgment for Ledbetter for backpay and damages, plus counsel fees and costs.

The Court of Appeals for the Eleventh Circuit reversed. Relying on Goodyear’s system of annual merit-based raises, the court held that Ledbetter’s claim, in relevant part, was time barred. 421 F.3d, at 1171, 1182-1183. Title VII provides that a charge of discrimination “shall be filed within [180] days after the alleged unlawful employment practice occurred.” 42 U.S.C. §2000e-5(e)(1).1 Ledbetter charged, and proved at trial, that within the 180-day period, her pay was substantially less than the pay of men doing the same work. Further, she introduced evidence sufficient to establish that discrimination against female managers at the Gadsden plant, not performance inadequacies on her part, accounted for the pay differential. See, e.g., App. 36-47, 51-68, 82-87, 90-98, 112-113. That evidence was unavailing, the Eleventh Circuit held, and the Court today agrees, because it was incumbent on Ledbetter to file charges year-by-year, each time Goodyear failed to increase her salary commensurate with the salaries of male peers. Any annual pay decision not contested immediately (within 180 days), the Court affirms, becomes grandfathered, a fait accompli beyond the province of Title VII ever to repair.

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time.

1 If the complainant has first instituted proceedings with a state or local agency, the filing period is extended to 300 days or 30 days after the denial of relief by the agency. 42 U.S.C. §2000e-5(e)(1). Because the 180-day period applies to Ledbetter’s case, that figure will be used throughout. See ante, at 3, 4.

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 meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves.

Pay disparities are thus significantly different from adverse actions “such as termination, failure to promote, … or refusal to hire,” all involving fully communicated discrete acts, “easy to identify” as discriminatory. See National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 114 (2002). It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter’s situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex.

On questions of time under Title VII, we have identified as the critical inquiries: “What constitutes an ‘unlawful employment practice’ and when has that practice ‘occurred’?” Id., at 110. Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race- based) discrimination – a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man. See Bazemore v. Friday, 478 U.S. 385, 395 (1986) (Brennan, J., joined by all other Members of the Court, concurring in part).

Title VII proscribes as an “unlawful employment practice” discrimination “against any individual with respect to his compensation … because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1). An individual seeking to challenge an employment practice under this proscription must file a charge with the EEOC within 180 days “after the alleged unlawful employment practice occurred.” §2000e- 5(e)(1). See ante, at 4; supra, at 2, n. 1.

Ledbetter’s petition presents a question important to the sound application of Title VII: What activity qualifies as an unlawful employment practice in cases of discrimination with respect to compensation. One answer identifies the pay-setting decision, and that decision alone, as the unlawful practice. Under this view, each particular salary-setting decision is discrete from prior and subsequent decisions, and must be challenged within 180 days on pain of forfeiture. Another response counts both the pay-setting decision and the actual payment of a discriminatory wage as unlawful practices. Under this approach, each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180-day charge-filing period, are not themselves actionable, but they are relevant in determining the lawfulness of conduct within the period. The Court adopts the first view, see ante, at 1, 4, 9, but the second is more faithful to precedent, more in tune with the realities of the workplace, and more respectful of Title VII’s remedial purpose.

In Bazemore, we unanimously held that an employer, the North Carolina Agricultural Extension Service, committed an unlawful employment practice each time it paid black

28 employees less than similarly situated white employees. 478 U.S., at 395 (opinion of Brennan, J.). Before 1965, the Extension Service was divided into two branches: a white branch and a “Negro branch.” Id., at 390. Employees in the “Negro branch” were paid less than their white counterparts. In response to the Civil Rights Act of 1964, which included Title VII, the State merged the two branches into a single organization, made adjustments to reduce the salary disparity, and began giving annual raises based on nondiscriminatory factors. Id., at 390-391, 394-395. Nonetheless, “some pre-existing salary disparities continued to linger on.” Id., at 394 (internal quotation marks omitted). We rejected the Court of Appeals’ conclusion that the plaintiffs could not prevail because the lingering disparities were simply a continuing effect of a decision lawfully made prior to the effective date of Title VII. See id., at 395-396. Rather, we reasoned, “[e]ach week’s paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII.” Id., at 395. Paychecks perpetuating past discrimination, we thus recognized, are actionable not simply because they are “related” to a decision made outside the charge- filing period, cf. ante, at 17, but because they discriminate anew each time they issue, see Bazemore, 478 U. S., at 395-396, and n. 6; Morgan, 536 U. S., at 111-112.

Subsequently, in Morgan, we set apart, for purposes of Title VII’s timely filing requirement, unlawful employment actions of two kinds: “discrete acts” that are “easy to identify” as discriminatory, and acts that recur and are cumulative in impact. See id.,at 110, 113-115. “[A] [d]iscrete ac[t] such as termination, failure to promote, denial of transfer, or refusal to hire,” id., at 114, we explained, “‘occur[s]’ on the day that it ‘happen[s].’ A party, therefore, must file a charge within … 180 … days of the date of the act or lose the ability to recover for it.” Id., at 110; see id., at 113 (“[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act.”).

“[D]ifferent in kind from discrete acts,” we made clear, are “claims … based on the cumulative effect of individual acts.” Id., at 115. The Morgan decision placed hostile work environment claims in that category. “Their very nature involves repeated conduct.” Ibid. “The unlawful employment practice” in hostile work environment claims, “cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.” Ibid. (internal quotation marks omitted). The persistence of the discriminatory conduct both indicates that management should have known of its existence and produces a cognizable harm. Ibid. Because the very nature of the hostile work environment claim involves repeated conduct,

“[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.” Id., at 117.

Consequently, although the unlawful conduct began in the past, “a charge may be filed at a later date and still encompass the whole.” Ibid.

Pay disparities, of the kind Ledbetter experienced, have a closer kinship to hostile work environment claims than to charges of a single episode of discrimination. Ledbetter’s claim, resembling Morgan’s, rested not on one particular paycheck, but on “the cumulative effect of individual acts.” See id., at 115. See also Brief for Petitioner 13, 15-17, and n. 9

(analogizing Ledbetter’s claim to the recurring and cumulative harm at issue in Morgan); Reply Brief for Petitioner 13 (distinguishing pay discrimination from “easy to identify” discrete acts (internal quotation marks omitted)). She charged insidious discrimination building up slowly but steadily. See Brief for Petitioner 5-8. Initially in line with the salaries of men performing substantially the same work, Ledbetter’s salary fell 15 to 40 percent behind her male counterparts only after successive evaluations and percentage-based pay adjustments. See supra, at 1-2. Over time, she alleged and proved, the repetition of pay decisions undervaluing her work gave rise to the current discrimination of which she complained. Though component acts fell outside the charge-filing period, with each new paycheck, Goodyear contributed incrementally to the accumulating harm. See Morgan, 536 U.S., at 117; Bazemore, 478 U.S., at 395-396; cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 502, n. 15 (1968).2

The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts “easy to identify.” A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight. It is not unusual, decisions in point illustrate, for management to decline to publish employee pay levels, or for employees to keep private their own salaries. See, e.g., Goodwin v. General Motors Corp., 275 F.3d 1005, 1008-1009 (C.A.10 2002) (plaintiff did not know what her colleagues earned until a printout listing of salaries appeared on her desk, seven years after her starting salary was set lower than her co-workers’ salaries); McMillan v. Massachusetts Soc. for the Prevention of Cruelty to Animals, 140 F.3d 288, 296 (C.A.1 1998) (plaintiff worked for employer for years before learning of salary disparity published in a newspaper).3 Tellingly, as the record in this case bears out, Goodyear kept salaries confidential; employees had only limited access to information regarding their colleagues’ earnings. App. 56-57, 89.

The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male counterparts are given larger raises. Having received a pay increase, the female employee is unlikely to discern at once that she has experienced an adverse employment decision. She may have little reason even to suspect discrimination until a pattern develops incrementally and she ultimately becomes aware of the disparity. Even if an employee

2 National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 117 (2002), the Court emphasizes, required that “an act contributing to the claim occu[r] within the [charge-]filing period.” Ante, at 19, and n. 7 (emphasis deleted; internal quotation marks omitted). Here, each paycheck within the filing period compounded the discrimination Ledbetter encountered, and thus contributed to the “actionable wrong,” i.e., the succession of acts composing the pattern of discriminatory pay, of which she complained.

3 See also Bierman & Gely, “Love, Sex and Politics? Sure. Salary? No Way”: Workplace Social Norms and the Law, 25 Berkeley J. Emp. & Lab. L. 167, 168, 171 (2004) (one-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with co- workers; only one in ten employers has adopted a pay openness policy).

30 suspects that the reason for a comparatively low raise is not performance but sex (or another protected ground), the amount involved may seem too small, or the employer’s intent too ambiguous, to make the issue immediately actionable – or winnable.

Further separating pay claims from the discrete employment actions identified in Morgan, an employer gains from sex-based pay disparities in a way it does not from a discriminatory denial of promotion, hiring, or transfer. When a male employee is selected over a female for a higher level position, someone still gets the promotion and is paid a higher salary; the employer is not enriched. But when a woman is paid less than a similarly situated man, the employer reduces its costs each time the pay differential is implemented. Furthermore, decisions on promotions, like decisions installing seniority systems, often implicate the interests of third-party employees in a way that pay differentials do not. Cf. Teamsters v. United States, 431 U.S. 324, 352-353 (1977) (recognizing that seniority systems involve “vested … rights of employees” and concluding that Title VII was not intended to “destroy or water down” those rights). Disparate pay, by contrast, can be remedied at any time solely at the expense of the employer who acts in a discriminatory fashion. C

In light of the significant differences between pay disparities and discrete employment decisions of the type identified in Morgan, the cases on which the Court relies hold no sway. See ante, at 5-10 (discussing United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), Delaware State College v. Ricks, 449 U.S. 250 (1980), and Lorance v. AT&T Technologies, Inc., 490 U.S. 900 (1989)). Evans and Ricks both involved a single, immediately identifiable act of discrimination: in Evans, a constructive discharge, 431 U.S., at 554; in Ricks, a denial of tenure, 449 U.S., at 252. In each case, the employee filed charges well after the discrete discriminatory act occurred: When United Airlines forced Evans to resign because of its policy barring married female flight attendants, she filed no charge; only four years later, when Evans was rehired, did she allege that the airline’s former no-marriage rule was unlawful and therefore should not operate to deny her seniority credit for her prior service. See Evans, 431 U.S., at 554-557. Similarly, when Delaware State College denied Ricks tenure, he did not object until his terminal contract came to an end, one year later. Ricks, 449 U.S., at 253-254, 257-258. No repetitive, cumulative discriminatory employment practice was at issue in either case. See Evans, 431 U.S., at 557-558; Ricks, 449 U.S., at 258.4

Lorance is also inapposite, for, in this Court’s view, it too involved a one-time discrete act: the adoption of a new seniority system that “had its genesis in sex discrimination.” See 490 U.S., at 902, 905 (internal quotation marks omitted). The Court’s extensive reliance on Lorance, ante, at 7-9, 14, 17-18, moreover, is perplexing for that decision is no longer

4 The Court also relies on Machinists v. NLRB, 362 U.S. 411 (1960), which like Evans and Ricks, concerned a discrete act: the execution of a collective bargaining agreement containing a union security clause. 362 U.S., at 412, 417. In Machinists, it was undisputed that under the National Labor Relations Act (NLRA), a union and an employer may not agree to a union security clause “if at the time of original execution the union does not represent a majority of the employees in the [bargaining] unit.” Id.,at 412–414, 417. The complainants, however, failed to file a charge within the NLRA’s six-month charge filing period; instead, they filed charges 10 and 12 months after the execution of the agreement, objecting to its subsequent enforcement. See id., at 412, 414. Thus, as in Evans and Ricks, but in contrast to Ledbetter’s case, the employment decision at issue was easily identifiable and occurred on a single day.

31 effective: In the 1991 Civil Rights Act, Congress superseded Lorance’s holding. §112, 105 Stat. 1079 (codified as amended at 42 U.S.C. §2000e-5(e)(2)). Repudiating our judgment that a facially neutral seniority system adopted with discriminatory intent must be challenged immediately, Congress provided:

“For purposes of this section, an unlawful employment practice occurs … when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system.” Ibid.

Congress thus agreed with the dissenters in Lorance that “the harsh reality of [that] decision,” was “glaringly at odds with the purposes of Title VII.” 490 U.S., at 914 (opinion of Marshall, J.). See also §3, 105 Stat. 1071 (1991 Civil Rights Act was designed “to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination”).

True, §112 of the 1991 Civil Rights Act directly addressed only seniority systems. See ante, at 8, and n. 2. But Congress made clear (1) its view that this Court had unduly contracted the scope of protection afforded by Title VII and other civil rights statutes, and (2) its aim to generalize the ruling in Bazemore. As the Senate Report accompanying the proposed Civil Rights Act of 1990, the precursor to the 1991 Act, explained:

“Where, as was alleged in Lorance, an employer adopts a rule or decision with an unlawful discriminatory motive, each application of that rule or decision is a new violation of the law. In Bazemore . . ., for example, … the Supreme Court properly held that each application of th[e] racially motivated salary structure, i.e., each new paycheck, constituted a distinct violation of Title VII. Section 7(a)(2) generalizes the result correctly reached in Bazemore.” Civil Rights Act of 1990, S. Rep. No. 101–315, p. 54 (1990).5

See also 137 Cong. Rec. 29046, 29047 (1991) (Sponsors’ Interpretative Memorandum) (“This legislation should be interpreted as disapproving the extension of [Lorance] to contexts outside of seniority systems.”). But cf. ante, at 18 (relying on Lorance to conclude that “when an employer issues paychecks pursuant to a system that is facially nondiscriminatory and neutrally applied” a new Title VII violation does not occur (internal quotation marks omitted)).

Until today, in the more than 15 years since Congress amended Title VII, the Court had not once relied upon Lorance. It is mistaken to do so now. Just as Congress’ “goals in enacting Title VII … never included conferring absolute immunity on discriminatorily adopted seniority systems that survive their first [180] days,” 490 U.S., at 914 (Marshall, J., dissenting), Congress never intended to immunize forever discriminatory pay differentials unchallenged within 180 days of their adoption. This assessment gains weight when one comprehends that even a relatively minor pay disparity will expand exponentially over an employee’s working life if raises are set as a percentage of prior pay.

5 No Senate Report was submitted with the Civil Rights Act of 1991, which was in all material respects identical to the proposed 1990 Act.

A clue to congressional intent can be found in Title VII’s backpay provision. The statute expressly provides that backpay may be awarded for a period of up to two years before the discrimination charge is filed. 42 U.S.C. §2000e-5(g)(1) (“Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission.”). This prescription indicates that Congress contemplated challenges to pay discrimination commencing before, but continuing into, the 180-day filing period. See Morgan, 536 U.S., at 119 (“If Congress intended to limit liability to conduct occurring in the period within which the party must file the charge, it seems unlikely that Congress would have allowed recovery for two years of backpay.”). As we recognized in Morgan, “the fact that Congress expressly limited the amount of recoverable damages elsewhere to a particular time period [i.e., two years] indicates that the [180-day] timely filing provision was not meant to serve as a specific limitation … [on] the conduct that may be considered.” Ibid.

In tune with the realities of wage discrimination, the Courts of Appeals have overwhelmingly judged as a present violation the payment of wages infected by discrimination: Each paycheck less than the amount payable had the employer adhered to a nondiscriminatory compensation regime, courts have held, constitutes a cognizable harm. See, e.g., Forsyth v. Federation Employment and Guidance Serv., 409 F.3d 565, 573 (C.A.2 2005) (“Any paycheck given within the [charge-filing] period … would be actionable, even if based on a discriminatory pay scale set up outside of the statutory period.”); Shea v. Rice, 409 F.3d 448, 452-453 (C.A.D.C. 2005) (“[An] employer commit[s] a separate unlawful employment practice each time he pa[ys] one employee less than another for a discriminatory reason” (citing Bazemore, 478 U.S., at 396)); Goodwin v. General Motors Corp., 275 F.3d 1005, 1009-1010 (C.A.10 2002) (“[Bazemore] has taught a crucial distinction with respect to discriminatory disparities in pay, establishing that a discriminatory salary is not merely a lingering effect of past discrimination – instead it is itself a continually recurring violation…. [E]ach race-based discriminatory salary payment constitutes a fresh violation of Title VII.” (footnote omitted)); Anderson v. Zubieta, 180 F.3d 329, 335 (C.A.D.C. 1999) (“The Courts of Appeals have repeatedly reached the … conclusion” that pay discrimination is “actionable upon receipt of each paycheck.”); accord Hildebrandt v. Illinois Dept. of Natural Resources, 347 F.3d 1014, 1025-1029 (C.A.7 2003); Cardenas v. Massey, 269 F.3d 251, 257 (C.A.3 2001); Ashley v. Boyle’s Famous Corned Beef Co., 66 F.3d 164, 167-168 (C.A.8 1995) (en banc); Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 347-349 (C.A.4 1994); Gibbs v. Pierce County Law Enforcement Support Agency, 785 F.2d 1396, 1399-1400 (C.A.9 1986).

Similarly in line with the real-world characteristics of pay discrimination, the EEOC – the federal agency responsible for enforcing Title VII, see, e.g., 42 U.S.C. §§2000e-5(f), 2000e-12(a) –has interpreted the Act to permit employees to challenge disparate pay each time it is received. The EEOC’s Compliance Manual provides that “repeated occurrences of the same discriminatory employment action, such as discriminatory paychecks, can be challenged as long as one discriminatory act occurred within the charge filing period.” 2 EEOC Compliance Manual §2-IV-C(1)(a), p. 605:0024, and n. 183 (2006); cf. id., §10-III, p. 633:0002 (Title VII requires an employer to eliminate pay disparities attributable to a discriminatory system, even if that system has been discontinued).

The EEOC has given effect to its interpretation in a series of administrative decisions. See Albritton v. Potter, No. 01A44063, 2004 WL 2983682, *2 (EEOC Office of Fed. Operations,

Dec. 17, 2004) (although disparity arose and employee became aware of the disparity outside the charge-filing period, claim was not time barred because “[e]ach paycheck that complainant receives which is less than that of similarly situated employees outside of her protected classes could support a claim under Title VII if discrimination is found to be the reason for the pay discrepancy.” (citing Bazemore, 478 U. S., at 396)). See also Bynum- Doles v. Winter, No. 01A53973, 2006 WL 2096290 (EEOC Office of Fed. Operations, July 18, 2006); Ward v. Potter, No. 01A60047, 2006 WL 721992 (EEOC Office of Fed. Operations, Mar. 10, 2006). And in this very case, the EEOC urged the Eleventh Circuit to recognize that Ledbetter’s failure to challenge any particular pay-setting decision when that decision was made “does not deprive her of the right to seek relief for discriminatory paychecks she received in 1997 and 1998.” Brief of EEOC in Support of Petition for Rehearing and Suggestion for Rehearing En Banc, in No. 03-15264-GG (CA11), p. 14 (hereinafter EEOC Brief) (citing Morgan, 536 U. S., at 113).6

The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to “protec[t] employers from the burden of defending claims arising from employment decisions that are long past.” Ante, at 11 (quoting Ricks, 449 U.S., at 256-257). But the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm. Allowing employees to challenge discrimination “that extend[s] over long periods of time,” into the charge-filing period, we have previously explained, “does not leave employers defenseless” against unreasonable or prejudicial delay. Morgan, 536 U.S., at 121. Employers disadvantaged by such delay may raise various defenses. Id., at 122. Doctrines such as “waiver, estoppel, and equitable tolling” “allow us to honor Title VII’s remedial purpose without negating the particular purpose of the filing requirement, to give prompt notice to the employer.” Id., at 121 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982)); see 536 U.S., at 121 (defense of laches may be invoked to block an employee’s suit “if he unreasonably delays in filing [charges] and as a result harms the defendant”); EEOC Brief 15 (“[I]f Ledbetter unreasonably delayed challenging an earlier decision, and that delay significantly impaired Goodyear’s ability to defend itself … Goodyear can raise a defense of laches….”).7

In a last-ditch argument, the Court asserts that this dissent would allow a plaintiff to sue on a single decision made 20 years ago “even if the employee had full knowledge of all

6 The Court dismisses the EEOC’s considerable “experience and informed judgment,” Firefighters v. Cleveland, 478 U.S. 501, 518 (1986) (internal quotation marks omitted), as unworthy of any deference in this case, see ante, at 23-24, n. 11. But the EEOC’s interpretations mirror workplace realities and merit at least respectful attention. In any event, the level of deference due the EEOC here is an academic question, for the agency’s conclusion that Ledbetter’s claim is not time barred is the best reading of the statute even if the Court “were interpreting [Title VII] from scratch.” See Edelman v. Lynchburg College, 535 U.S. 106, 114 (2002); see supra, at 4-14.

7 Further, as the EEOC appropriately recognized in its brief to the Eleventh Circuit, Ledbetter’s failure to challenge particular pay raises within the charge-filing period “significantly limit[s] the relief she can seek. By waiting to file a charge, Ledbetter lost her opportunity to seek relief for any discriminatory paychecks she received between 1979 and late 1997.” EEOC Brief 14. See also supra, at 12-13.

34 the circumstances relating to the … decision at the time it was made.” Ante, at 20. It suffices to point out that the defenses just noted would make such a suit foolhardy. No sensible judge would tolerate such inexcusable neglect. See Morgan, 536 U.S., at 121 (“In such cases, the federal courts have the discretionary power … to locate a just result in light of the circumstances peculiar to the case.” (internal quotation marks omitted)).

Ledbetter, the Court observes, ante, at 21, n. 9, dropped an alternative remedy she could have pursued: Had she persisted in pressing her claim under the Equal Pay Act of 1963 (EPA), 29 U.S.C. §206(d), she would not have encountered a time bar.8 See ante, at 21 (“If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.”); cf. Corning Glass Works v. Brennan, 417 U.S. 188, 208-210 (1974). Notably, the EPA provides no relief when the pay discrimination charged is based on race, religion, national origin, age, or disability. Thus, in truncating the Title VII rule this Court announced in Bazemore, the Court does not disarm female workers from achieving redress for unequal pay, but it does impede racial and other minorities from gaining similar relief.9

Furthermore, the difference between the EPA’s prohibition against paying unequal wages and Title VII’s ban on discrimination with regard to compensation is not as large as the Court’s opinion might suggest. See ante, at 21. The key distinction is that Title VII requires a showing of intent. In practical effect, “if the trier of fact is in equipoise about whether the wage differential is motivated by gender discrimination,” Title VII compels a verdict for the employer, while the EPA compels a verdict for the plaintiff. 2 C. Sullivan, M. Zimmer, & R. White, Employment Discrimination: Law and Practice §7.08[F][3], p. 532 (3d ed. 2002). In this case, Ledbetter carried the burden of persuading the jury that the pay disparity she suffered was attributable to intentional sex discrimination. See supra, at 1-2; infra, this page and 18.

III

To show how far the Court has strayed from interpretation of Title VII with fidelity to the Act’s core purpose, I return to the evidence Ledbetter presented at trial. Ledbetter proved to the jury the following: She was a member of a protected class; she performed work substantially equal to work of the dominant class (men); she was compensated less for that work; and the disparity was attributable to gender-based discrimination. See supra, at 1-2.

8 Under the EPA 29 U.S.C. §206(d), which is subject to the Fair Labor Standards Act’s time prescriptions, a claim charging denial of equal pay accrues anew with each paycheck. 1 B. Lindemann & P. Grossman, Employment Discrimination Law 529 (3d ed. 1996); cf. 29 U.S.C. §255(a) (prescribing a two-year statute of limitations for violations generally, but a three-year limitation period for willful violations).

9 For example, under today’s decision, if a black supervisor initially received the same salary as his white colleagues, but annually received smaller raises, there would be no right to sue under Title VII outside the 180-day window following each annual salary change, however strong the cumulative evidence of discrimination might be. The Court would thus force plaintiffs, in many cases, to sue too soon to prevail, while cutting them off as time barred once the pay differential is large enough to enable them to mount a winnable case.

Specifically, Ledbetter’s evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear’s pervasive discrimination against women managers in general and Ledbetter in particular. Ledbetter’s former supervisor, for example, admitted to the jury that Ledbetter’s pay, during a particular one- year period, fell below Goodyear’s minimum threshold for her position. App. 93-97. Although Goodyear claimed the pay disparity was due to poor performance, the supervisor acknowledged that Ledbetter received a “Top Performance Award” in 1996. Id., at 90-93. The jury also heard testimony that another supervisor – who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial – was openly biased against women. Id., at 46, 77-82. And two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised. Id., at 51- 68. Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the “plant did not need women, that [women] didn’t help it, [and] caused problems.” Id., at 36.10 After weighing all the evidence, the jury found for Ledbetter, concluding that the pay disparity was due to intentional discrimination.

Yet, under the Court’s decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court’s approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure. See, e.g., Teamsters v. United States, 431 U.S., at 348 (“The primary purpose of Title VII was to assure equality of employment opportunities and to eliminate … discriminatory practices and devices….” (internal quotation marks omitted)); Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975) (“It is … the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination.”).

This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute’s broad remedial purpose. See supra, at 10-12. See also Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989) (superseded in part by the Civil Rights Act of 1991); Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion) (same); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 2 (3d ed. 1996) (“A spate of Court decisions in the late 1980s drew congressional fire and resulted in demands for legislative change[,]” culminating in the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress’ court. As in 1991, the Legislature may act to correct this Court’s parsimonious reading of Title VII.

*** For the reasons stated, I would hold that Ledbetter’s claim is not time barred and would reverse the Eleventh Circuit’s judgment.

10 Given this abundant evidence, the Court cannot tenably maintain that Ledbetter’s case “turned principally on the misconduct of a single Goodyear supervisor.” See ante, at 12-13, n. 4.

GINSBURG DISSENT SHELBY COUNTY, ALA V. HOLDER, 570 U.S. 529 (2013)

Justice Ginsburg, with whom Justice Breyer, Justice Sotomayor, and Justice Kagan join, dissenting.

In the Court’s view, the very success of §5 of the Voting Rights Act demands its dormancy. Congress was of another mind. Recognizing that large progress has been made, Congress determined, based on a voluminous record, that the scourge of discrimination was not yet extirpated. The question this case presents is who decides whether, as currently operative, §5 remains justifiable,1 this Court, or a Congress charged with the obligation to enforce the post-Civil War Amendments “by appropriate legislation.” With overwhelming support in both Houses, Congress concluded that, for two prime reasons, §5 should continue in force, unabated. First, continuance would facilitate completion of the impressive gains thus far made; and second, continuance would guard against backsliding. Those assessments were well within Congress’ province to make and should elicit this Court’s unstinting approbation.

“[V]oting discrimination still exists; no one doubts that.” Ante, at 2. But the Court today terminates the remedy that proved to be best suited to block that discrimination. The Voting Rights Act of 1965 (VRA) has worked to combat voting discrimination where other remedies had been tried and failed. Particularly effective is the VRA’s requirement of federal preclearance for all changes to voting laws in the regions of the country with the most aggravated records of rank discrimination against minority voting rights.

A century after the Fourteenth and Fifteenth Amendments guaranteed citizens the right to vote free of discrimination on the basis of race, the “blight of racial discrimination in voting” continued to “infec[t] the electoral process in parts of our country.” South Carolina v. Katzenbach, 383 U.S. 301, 308 (1966). Early attempts to cope with this vile infection resembled battling the Hydra. Whenever one form of voting discrimination was identified and prohibited, others sprang up in its place. This Court repeatedly encountered the remarkable “variety and persistence” of laws disenfranchising minority citizens. Id., at 311. To take just one example, the Court, in 1927, held unconstitutional a Texas law barring black voters from participating in primary elections, Nixon v. Herndon, 273 U.S. 536; in 1944, the Court struck down a “reenacted” and slightly altered version of the same law, Smith v. Allwright, 321 U.S. 649 ; and in 1953, the Court once again confronted an attempt by Texas to “circumven[t]” the Fifteenth Amendment by adopting yet another variant of the all-white primary, Terry v. Adams, 345 U.S. 461 .

During this era, the Court recognized that discrimination against minority voters was a quintessentially political problem requiring a political solution. As Justice Holmes explained: If “the great mass of the white population intends to keep the blacks from voting,” “relief from [that] great political wrong, if done, as alleged, by the people of a State and the State itself, must be given by them or by the legislative and political department of the government of the United States.” Giles v. Harris, 189 U.S. 475, 488 (1903).

1 The Court purports to declare unconstitutional only the coverage formula set out in §4(b). See ante, at 24. But without that formula, §5 is immobilized.

Congress learned from experience that laws targeting particular electoral practices or enabling case-by-case litigation were inadequate to the task. In the Civil Rights Acts of 1957, 1960, and 1964, Congress authorized and then expanded the power of “the Attorney General to seek injunctions against public and private interference with the right to vote on racial grounds.” Katzenbach, 383 U.S., at 313. But circumstances reduced the ameliorative potential of these legislative Acts:

“Voting suits are unusually onerous to prepare, sometimes requiring as many as 6,000 man-hours spent combing through registration records in preparation for trial. Litigation has been exceedingly slow, in part because of the ample opportunities for delay afforded voting officials and others involved in the proceedings. Even when favorable decisions have finally been obtained, some of the States affected have merely switched to discriminatory devices not covered by the federal decrees or have enacted difficult new tests designed to prolong the existing disparity between white and Negro registration. Alternatively, certain local officials have defied and evaded court orders or have simply closed their registration offices to freeze the voting rolls.” Id., at 314 (footnote omitted).

Patently, a new approach was needed.

Answering that need, the Voting Rights Act became one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history. Requiring federal preclearance of changes in voting laws in the covered jurisdictions – those States and localities where opposition to the Constitution’s commands were most virulent – the VRA provided a fit solution for minority voters as well as for States. Under the preclearance regime established by §5 of the VRA, covered jurisdictions must submit proposed changes in voting laws or procedures to the Department of Justice (DOJ), which has 60 days to respond to the changes. 79 Stat. 439, codified at 42 U.S.C. §1973c(a). A change will be approved unless DOJ finds it has “the purpose [or] ... the effect of denying or abridging the right to vote on account of race or color.” Ibid. In the alternative, the covered jurisdiction may seek approval by a three-judge District Court in the District of Columbia.

After a century’s failure to fulfill the promise of the Fourteenth and Fifteenth Amendments, passage of the VRA finally led to signal improvement on this front. “The Justice Department estimated that in the five years after [the VRA’s] passage, almost as many blacks registered [to vote] in Alabama, Mississippi, Georgia, Louisiana, North Carolina, and South Carolina as in the entire century before 1965.” Davidson, The Voting Rights Act: A Brief History, in Controversies in Minority Voting 7, 21 (B. Grofman & C. Davidson eds. 1992). And in assessing the overall effects of the VRA in 2006, Congress found that “[s]ignificant progress has been made in eliminating first generation barriers experienced by minority voters, including increased numbers of registered minority voters, minority voter turnout, and minority representation in Congress, State legislatures, and local elected offices. This progress is the direct result of the Voting Rights Act of 1965.” Fannie Lou Hamer, Rosa Parks, and Coretta Scott King Voting Rights Act Reauthorization and Amendments Act of 2006 (hereinafter 2006 Reauthorization), §2(b)(1), 120 Stat. 577. On that matter of cause and effects there can be no genuine doubt.

Although the VRA wrought dramatic changes in the realization of minority voting rights, the Act, to date, surely has not eliminated all vestiges of discrimination against the exercise

38 of the franchise by minority citizens. Jurisdictions covered by the preclearance requirement continued to submit, in large numbers, proposed changes to voting laws that the Attorney General declined to approve, auguring that barriers to minority voting would quickly resurface were the preclearance remedy eliminated. City of Rome v. United States, 446 U.S. 156, 181 (1980). Congress also found that as “registration and voting of minority citizens increas[ed], other measures may be resorted to which would dilute increasing minority voting strength.” Ibid. (quoting H.R. Rep. No. 94-196, p. 10 (1975)). See also Shaw v. Reno, 509 U.S. 630, 640 (1993) (“[I]t soon became apparent that guaranteeing equal access to the polls would not suffice to root out other racially discriminatory voting practices” such as voting dilution). Efforts to reduce the impact of minority votes, in contrast to direct attempts to block access to the ballot, are aptly described as “second- generation barriers” to minority voting.

Second-generation barriers come in various forms. One of the blockages is racial gerrymandering, the redrawing of legislative districts in an “effort to segregate the races for purposes of voting.” Id., at 642. Another is adoption of a system of at-large voting in lieu of district-by-district voting in a city with a sizable black minority. By switching to at- large voting, the overall majority could control the election of each city council member, effectively eliminating the potency of the minority’s votes. Grofman & Davidson, The Effect of Municipal Election Structure on Black Representation in Eight Southern States, in Quiet Revolution in the South 301, 319 (C. Davidson & B. Grofman eds. 1994) (hereinafter Quiet Revolution). A similar effect could be achieved if the city engaged in discriminatory annexation by incorporating majority-white areas into city limits, thereby decreasing the effect of VRA-occasioned increases in black voting. Whatever the device employed, this Court has long recognized that vote dilution, when adopted with a discriminatory purpose, cuts down the right to vote as certainly as denial of access to the ballot. Shaw, 509 U.S., at 640-641; Allen v. State Bd. of Elections, 393 U.S. 544, 569 (1969); Reynolds v. Sims, 377 U.S. 533, 555 (1964). See also H.R. Rep. No. 109-478, p. 6 (2006) (although “[d]iscrimination today is more subtle than the visible methods used in 1965,” “the effect and results are the same, namely a diminishing of the minority community’s ability to fully participate in the electoral process and to elect their preferred candidates”).

In response to evidence of these substituted barriers, Congress reauthorized the VRA for five years in 1970, for seven years in 1975, and for 25 years in 1982. Ante, at 4-5. Each time, this Court upheld the reauthorization as a valid exercise of congressional power. Ante, at 5. As the 1982 reauthorization approached its 2007 expiration date, Congress again considered whether the VRA’s preclearance mechanism remained an appropriate response to the problem of voting discrimination in covered jurisdictions.

Congress did not take this task lightly. Quite the opposite. The 109th Congress that took responsibility for the renewal started early and conscientiously. In October 2005, the House began extensive hearings, which continued into November and resumed in March 2006. S. Rep. No. 109-295, p. 2 (2006). In April 2006, the Senate followed suit, with hearings of its own. Ibid. In May 2006, the bills that became the VRA’s reauthorization were introduced in both Houses. Ibid. The House held further hearings of considerable length, as did the Senate, which continued to hold hearings into June and July. H.R. Rep. 109-478, at 5; S. Rep. 109-295, at 3-4. In mid-July, the House considered and rejected four amendments, then passed the reauthorization by a vote of 390 yeas to 33 nays. 152 Cong. Rec. H5207 (July 13, 2006); Persily, The Promise and Pitfalls of the New Voting Rights Act, 117 Yale L. J. 174, 182-183 (2007) (hereinafter Persily). The bill was read and debated in the Senate, where it passed by a vote of 98 to 0. 152 Cong. Rec. S8012 (July

20, 2006). President Bush signed it a week later, on July 27, 2006, recognizing the need for “further work. . . in the fight against injustice,” and calling the reauthorization “an example of our continued commitment to a united America where every person is valued and treated with dignity and respect.” 152 Cong. Rec. S8781 (Aug. 3, 2006).

In the long course of the legislative process, Congress “amassed a sizable record.” Northwest Austin Municipal Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009). See also 679 F.3d 848, 865-873 (C.A.D.C. 2012) (describing the “extensive record” supporting Congress’ determination that “serious and widespread intentional discrimination persisted in covered jurisdictions”). The House and Senate Judiciary Committees held 21 hearings, heard from scores of witnesses, received a number of investigative reports and other written documentation of continuing discrimination in covered jurisdictions. In all, the legislative record Congress compiled filled more than 15,000 pages. H.R. Rep. 109-478, at 5, 11-12; S. Rep. 109-295, at 2-4, 15. The compilation presents countless “examples of flagrant racial discrimination” since the last reauthorization; Congress also brought to light systematic evidence that “intentional racial discrimination in voting remains so serious and widespread in covered jurisdictions that section 5 preclearance is still needed.” 679 F.3d, at 866.

After considering the full legislative record, Congress made the following findings: The VRA has directly caused significant progress in eliminating first-generation barriers to ballot access, leading to a marked increase in minority voter registration and turnout and the number of minority elected officials. 2006 Reauthorization §2(b)(1). But despite this progress, “second generation barriers constructed to prevent minority voters from fully participating in the electoral process” continued to exist, as well as racially polarized voting in the covered jurisdictions, which increased the political vulnerability of racial and language minorities in those jurisdictions. §§2(b)(2)-(3), 120 Stat. 577. Extensive “[e]vidence of continued discrimination,” Congress concluded, “clearly show[ed] the continued need for Federal oversight” in covered jurisdictions. §§2(b)(4)-(5), id., at 577- 578. The overall record demonstrated to the federal lawmakers that, “without the continuation of the Voting Rights Act of 1965 protections, racial and language minority citizens will be deprived of the opportunity to exercise their right to vote, or will have their votes diluted, undermining the significant gains made by minorities in the last 40 years.” §2(b)(9), id., at 578.

Based on these findings, Congress reauthorized preclearance for another 25 years, while also undertaking to reconsider the extension after 15 years to ensure that the provision was still necessary and effective. 42 U.S.C. §1973b(a)(7), (8) (2006 ed., Supp. V). The question before the Court is whether Congress had the authority under the Constitution to act as it did.

In answering this question, the Court does not write on a clean slate. It is well established that Congress’ judgment regarding exercise of its power to enforce the Fourteenth and Fifteenth Amendments warrants substantial deference. The VRA addresses the combination of race discrimination and the right to vote, which is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). When confronting the most constitutionally invidious form of discrimination, and the most fundamental right in our democratic system, Congress’ power to act is at its height.

The basis for this deference is firmly rooted in both constitutional text and precedent. The Fifteenth Amendment, which targets precisely and only racial discrimination in voting rights, states that, in this domain, “Congress shall have power to enforce this article by appropriate legislation.”2 In choosing this language, the Amendment’s framers invoked Chief Justice Marshall’s formulation of the scope of Congress’ powers under the Necessary and Proper Clause:

“Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” McCulloch v. Maryland, 4 Wheat. 316, 421 (1819) (emphasis added).

It cannot tenably be maintained that the VRA, an Act of Congress adopted to shield the right to vote from racial discrimination, is inconsistent with the letter or spirit of the Fifteenth Amendment, or any provision of the Constitution read in light of the Civil War Amendments. Nowhere in today’s opinion, or in Northwest Austin,3 is there clear recognition of the transformative effect the Fifteenth Amendment aimed to achieve. Notably, “the Founders’ first successful amendment told Congress that it could ‘make no law’ over a certain domain”; in contrast, the Civil War Amendments used “language [that] authorized transformative new federal statutes to uproot all vestiges of unfreedom and inequality” and provided “sweeping enforcement powers... to enact ‘appropriate’ legislation targeting state abuses.” A. Amar, America’s Constitution: A Biography 361, 363, 399 (2005). See also McConnell, Institutions and Interpretation: A Critique of City of Boerne v. Flores, 111 Harv. L. Rev. 153, 182 (1997) (quoting Civil War-era framer that “the remedy for the violation of the fourteenth and fifteenth amendments was expressly not left to the courts. The remedy was legislative.”).

The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States. In exercising that power, then, Congress may use “all means which are appropriate, which are plainly adapted” to the constitutional ends declared by these Amendments. McCulloch, 4 Wheat., at 421. So when Congress acts to enforce the right to vote free from racial discrimination, we ask not whether Congress has chosen the means most wise, but whether Congress has rationally selected means appropriate to a legitimate end. “It is not for us to review the congressional resolution of [the need for its chosen remedy]. It is enough that we be able to perceive a basis upon which the Congress might resolve the conflict as it did.” Katzenbach v. Morgan, 384 U.S. 641, 653 (1966).

2 The Constitution uses the words “right to vote” in five separate places: the Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth Amendments. Each of these Amendments contains the same broad empowerment of Congress to enact “appropriate legislation” to enforce the protected right. The implication is unmistakable: Under our constitutional structure, Congress holds the lead rein in making the right to vote equally real for all U.S. citizens. These Amendments are in line with the special role assigned to Congress in protecting the integrity of the democratic process in federal elections. U.S. Const., Art. I, §4 (“[T]he Congress may at any time by Law make or alter” regulations concerning the “Times, Places and Manner of holding Elections for Senators and Representatives.”); Arizona v. Inter Tribal Council of Ariz., Inc., ante, at 5-6.

3 Acknowledging the existence of “serious constitutional questions,” see ante, at 22 (internal quotation marks omitted), does not suggest how those questions should be answered.

Until today, in considering the constitutionality of the VRA, the Court has accorded Congress the full measure of respect its judgments in this domain should garner. South Carolina v. Katzenbach supplies the standard of review: “As against the reserved powers of the States, Congress may use any rational means to effectuate the constitutional prohibition of racial discrimination in voting.” 383 U.S., at 324. Faced with subsequent reauthorizations of the VRA, the Court has reaffirmed this standard. E.g., City of Rome, 446 U. S., at 178. Today’s Court does not purport to alter settled precedent establishing that the dispositive question is whether Congress has employed “rational means.”

For three reasons, legislation reauthorizing an existing statute is especially likely to satisfy the minimal requirements of the rational-basis test. First, when reauthorization is at issue, Congress has already assembled a legislative record justifying the initial legislation. Congress is entitled to consider that preexisting record as well as the record before it at the time of the vote on reauthorization. This is especially true where, as here, the Court has repeatedly affirmed the statute’s constitutionality and Congress has adhered to the very model the Court has upheld. See id., at 174 (“The appellants are asking us to do nothing less than overrule our decision in South Carolina v. Katzenbach... , in which we upheld the constitutionality of the Act.”); Lopez v. Monterey County, 525 U.S. 266, 283 (1999) (similar).

Second, the very fact that reauthorization is necessary arises because Congress has built a temporal limitation into the Act. It has pledged to review, after a span of years (first 15, then 25) and in light of contemporary evidence, the continued need for the VRA. Cf. Grutter v. Bollinger, 539 U.S. 306, 343 (2003) (anticipating, but not guaranteeing, that, in 25 years, “the use of racial preferences [in higher education] will no longer be necessary”).

Third, a reviewing court should expect the record supporting reauthorization to be less stark than the record originally made. Demand for a record of violations equivalent to the one earlier made would expose Congress to a catch-22. If the statute was working, there would be less evidence of discrimination, so opponents might argue that Congress should not be allowed to renew the statute. In contrast, if the statute was not working, there would be plenty of evidence of discrimination, but scant reason to renew a failed regulatory regime. See Persily 193-194.

This is not to suggest that congressional power in this area is limitless. It is this Court’s responsibility to ensure that Congress has used appropriate means. The question meet for judicial review is whether the chosen means are “adapted to carry out the objects the amendments have in view.” Ex parte Virginia, 100 U.S. 339, 346 (1880). The Court’s role, then, is not to substitute its judgment for that of Congress, but to determine whether the legislative record sufficed to show that “Congress could rationally have determined that [its chosen] provisions were appropriate methods.” City of Rome, 446 U.S., at 176-177.

In summary, the Constitution vests broad power in Congress to protect the right to vote, and in particular to combat racial discrimination in voting. This Court has repeatedly reaffirmed Congress’ prerogative to use any rational means in exercise of its power in this area. And both precedent and logic dictate that the rational-means test should be easier to satisfy, and the burden on the statute’s challenger should be higher, when what is at issue is the reauthorization of a remedy that the Court has previously affirmed, and that Congress found, from contemporary evidence, to be working to advance the legislature’s legitimate objective.

III

The 2006 reauthorization of the Voting Rights Act fully satisfies the standard stated in McCulloch, 4 Wheat., at 421: Congress may choose any means “appropriate” and “plainly adapted to” a legitimate constitutional end. As we shall see, it is implausible to suggest otherwise.

I begin with the evidence on which Congress based its decision to continue the preclearance remedy. The surest way to evaluate whether that remedy remains in order is to see if preclearance is still effectively preventing discriminatory changes to voting laws. See City of Rome, 446 U.S., at 181 (identifying “information on the number and types of submissions made by covered jurisdictions and the number and nature of objections interposed by the Attorney General” as a primary basis for upholding the 1975 reauthorization). On that score, the record before Congress was huge. In fact, Congress found there were more DOJ objections between 1982 and 2004 (626) than there were between 1965 and the 1982 reauthorization (490). 1 Voting Rights Act: Evidence of Continued Need, Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 2d Sess., p. 172 (2006) (hereinafter Evidence of Continued Need).

All told, between 1982 and 2006, DOJ objections blocked over 700 voting changes based on a determination that the changes were discriminatory. H.R. Rep. No. 109-478, at 21. Congress found that the majority of DOJ objections included findings of discriminatory intent, see 679 F.3d, at 867, and that the changes blocked by preclearance were “calculated decisions to keep minority voters from fully participating in the political process.” H.R. Rep. 109-478, at 21. On top of that, over the same time period the DOJ and private plaintiffs succeeded in more than 100 actions to enforce the §5 preclearance requirements. 1 Evidence of Continued Need 186, 250.

In addition to blocking proposed voting changes through preclearance, DOJ may request more information from a jurisdiction proposing a change. In turn, the jurisdiction may modify or withdraw the proposed change. The number of such modifications or withdrawals provides an indication of how many discriminatory proposals are deterred without need for formal objection. Congress received evidence that more than 800 proposed changes were altered or withdrawn since the last reauthorization in 1982. H. R. Rep. No. 109-478, at 40-41.4 Congress also received empirical studies finding that DOJ’s requests for more information had a significant effect on the degree to which covered jurisdictions “compl[ied] with their obligatio[n]” to protect minority voting rights. 2 Evidence of Continued Need 2555.

4 This number includes only changes actually proposed. Congress also received evidence that many covered jurisdictions engaged in an “informal consultation process” with DOJ before formally submitting a proposal, so that the deterrent effect of preclearance was far broader than the formal submissions alone suggest. The Continuing Need for Section 5 Pre-Clearance: Hearing before the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 53-54 (2006). All agree that an unsupported assertion about “deterrence” would not be sufficient to justify keeping a remedy in place in perpetuity. See ante, at 17. But it was certainly reasonable for Congress to consider the testimony of witnesses who had worked with officials in covered jurisdictions and observed a real- world deterrent effect.

Congress also received evidence that litigation under §2 of the VRA was an inadequate substitute for preclearance in the covered jurisdictions. Litigation occurs only after the fact, when the illegal voting scheme has already been put in place and individuals have been elected pursuant to it, thereby gaining the advantages of incumbency. 1 Evidence of Continued Need 97. An illegal scheme might be in place for several election cycles before a §2 plaintiff can gather sufficient evidence to challenge it. 1 Voting Rights Act: Section 5 of the Act – History, Scope, and Purpose: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., p. 92 (2005) (hereinafter Section 5 Hearing). And litigation places a heavy financial burden on minority voters. See id., at 84. Congress also received evidence that preclearance lessened the litigation burden on covered jurisdictions themselves, because the preclearance process is far less costly than defending against a §2 claim, and clearance by DOJ substantially reduces the likelihood that a §2 claim will be mounted. Reauthorizing the Voting Rights Act’s Temporary Provisions: Policy Perspectives and Views From the Field: Hearing before the Subcommittee on the Constitution, Civil Rights and Property Rights of the Senate Committee on the Judiciary, 109th Cong., 2d Sess., pp. 13, 120-121 (2006). See also Brief for States of New York, California, Mississippi, and North Carolina as Amici Curiae 8-9 (Section 5 “reduc[es] the likelihood that a jurisdiction will face costly and protracted Section 2 litigation”).

The number of discriminatory changes blocked or deterred by the preclearance requirement suggests that the state of voting rights in the covered jurisdictions would have been significantly different absent this remedy. Surveying the type of changes stopped by the preclearance procedure conveys a sense of the extent to which §5 continues to protect minority voting rights. Set out below are characteristic examples of changes blocked in the years leading up to the 2006 reauthorization:

• In 1995, Mississippi sought to reenact a dual voter registration system, “which was initially enacted in 1892 to disenfranchise Black voters,” and for that reason, was struck down by a federal court in 1987. H.R. Rep. No. 109-478, at 39.

• Following the 2000 census, the City of Albany, Georgia, proposed a redistricting plan that DOJ found to be “designed with the purpose to limit and retrogress the increased black voting strength ... in the city as a whole.” Id., at 37 (internal quotation marks omitted).

• In 2001, the mayor and all-white five-member Board of Aldermen of Kilmichael, Mississippi, abruptly canceled the town’s election after “an unprecedented number” of African-American candidates announced they were running for office. DOJ required an election, and the town elected its first black mayor and three black aldermen. Id., at 36-37.

• In 2006, this Court found that Texas’ attempt to redraw a congressional district to reduce the strength of Latino voters bore “the mark of intentional discrimination that could give rise to an equal protection violation,” and ordered the district redrawn in compliance with the VRA. League of United Latin American Citizens v. Perry, 548 U.S. 399, 440 (2006). In response, Texas sought to undermine this Court’s order by curtailing early voting in the district, but was blocked by an action to enforce the §5 preclearance requirement. See Order in League of United Latin American Citizens v. Texas, No. 06-cv-1046 (WD Tex.), Doc. 8.

• In 2003, after African-Americans won a majority of the seats on the school board for the first time in history, Charleston County, South Carolina, proposed an at- large voting mechanism for the board. The proposal, made without consulting any of the African-American members of the school board, was found to be an “‘exact replica’” of an earlier voting scheme that, a federal court had determined, violated the VRA. 811 F.Supp.2d 424, 483 (D.D.C. 2011). See also S. Rep. No. 109-295, at 309. DOJ invoked §5 to block the proposal.

• In 1993, the City of Millen, Georgia, proposed to delay the election in a majority- black district by two years, leaving that district without representation on the city council while the neighboring majority-white district would have three representatives. 1 Section 5 Hearing 744. DOJ blocked the proposal. The county then sought to move a polling place from a predominantly black neighborhood in the city to an inaccessible location in a predominantly white neighborhood outside city limits. Id., at 816.

• In 2004, Waller County, Texas, threatened to prosecute two black students after they announced their intention to run for office. The county then attempted to reduce the availability of early voting in that election at polling places near a historically black university. 679 F.3d, at 865-866.

• In 1990, Dallas County, Alabama, whose county seat is the City of Selma, sought to purge its voter rolls of many black voters. DOJ rejected the purge as discriminatory, noting that it would have disqualified many citizens from voting “simply because they failed to pick up or return a voter update form, when there was no valid requirement that they do so.” 1 Section 5 Hearing 356.

These examples, and scores more like them, fill the pages of the legislative record. The evidence was indeed sufficient to support Congress’ conclusion that “racial discrimination in voting in covered jurisdictions [remained] serious and pervasive.” 679 F.3d, at 865.5

Congress further received evidence indicating that formal requests of the kind set out above represented only the tip of the iceberg. There was what one commentator described as an “avalanche of case studies of voting rights violations in the covered jurisdictions,” ranging from “outright intimidation and violence against minority voters” to “more subtle forms of voting rights deprivations.” Persily 202 (footnote omitted). This evidence gave Congress ever more reason to conclude that the time had not yet come for relaxed vigilance against the scourge of race discrimination in voting.

5 For an illustration postdating the 2006 reauthorization, see South Carolina v. United States, 898 F.Supp.2d 30 (D.C. 2012), which involved a South Carolina voter-identification law enacted in 2011. Concerned that the law would burden minority voters, DOJ brought a §5 enforcement action to block the law’s implementation. In the course of the litigation, South Carolina officials agreed to binding interpretations that made it “far easier than some might have expected or feared” for South Carolina citizens to vote. Id., at 37. A three-judge panel precleared the law after adopting both interpretations as an express “condition of preclearance.” Id., at 37-38. Two of the judges commented that the case demonstrated “the continuing utility of Section 5 of the Voting Rights Act in deterring problematic, and hence encouraging non-discriminatory, changes in state and local voting laws.” Id., at 54 (opinion of Bates, J.).

True, conditions in the South have impressively improved since passage of the Voting Rights Act. Congress noted this improvement and found that the VRA was the driving force behind it. 2006 Reauthorization §2(b)(1). But Congress also found that voting discrimination had evolved into subtler second-generation barriers, and that eliminating preclearance would risk loss of the gains that had been made. §§2(b)(2), (9). Concerns of this order, the Court previously found, gave Congress adequate cause to reauthorize the VRA. City of Rome, 446 U.S., at 180-182 (congressional reauthorization of the preclearance requirement was justified based on “the number and nature of objections interposed by the Attorney General” since the prior reauthorization; extension was “necessary to pre-serve the limited and fragile achievements of the Act and to promote further amelioration of voting discrimination”) (internal quotation marks omitted). Facing such evidence then, the Court expressly rejected the argument that disparities in voter turnout and number of elected officials were the only metrics capable of justifying reauthorization of the VRA. Ibid.

I turn next to the evidence on which Congress based its decision to reauthorize the coverage formula in §4(b). Because Congress did not alter the coverage formula, the same jurisdictions previously subject to preclearance continue to be covered by this remedy. The evidence just described, of preclearance’s continuing efficacy in blocking constitutional violations in the covered jurisdictions, itself grounded Congress’ conclusion that the remedy should be retained for those jurisdictions.

There is no question, moreover, that the covered jurisdictions have a unique history of problems with racial discrimination in voting. Ante, at 12-13. Consideration of this long history, still in living memory, was altogether appropriate. The Court criticizes Congress for failing to recognize that “history did not end in 1965.” Ante, at 20. But the Court ignores that “what’s past is prologue.” W. Shakespeare, The Tempest, act 2, sc. 1. And “[t]hose who cannot remember the past are condemned to repeat it.” 1 G. Santayana, The Life of Reason 284 (1905). Congress was especially mindful of the need to reinforce the gains already made and to prevent backsliding. 2006 Reauthorization §2(b)(9).

Of particular importance, even after 40 years and thousands of discriminatory changes blocked by preclearance, conditions in the covered jurisdictions demonstrated that the formula was still justified by “current needs.” Northwest Austin, 557 U.S., at 203.

Congress learned of these conditions through a report, known as the Katz study, that looked at §2 suits between 1982 and 2004. To Examine the Impact and Effectiveness of the Voting Rights Act: Hearing before the Subcommittee on the Constitution of the House Committee on the Judiciary, 109th Cong., 1st Sess., pp. 964-1124 (2005) (hereinafter Impact and Effectiveness). Because the private right of action authorized by §2 of the VRA applies nationwide, a comparison of §2 lawsuits in covered and noncovered jurisdictions provides an appropriate yardstick for measuring differences between covered and noncovered jurisdictions. If differences in the risk of voting discrimination between covered and noncovered jurisdictions had disappeared, one would expect that the rate of successful §2 lawsuits would be roughly the same in both areas.6 The study’s findings,

6 Because preclearance occurs only in covered jurisdictions and can be expected to stop the most obviously objectionable measures, one would expect a lower rate of successful §2 lawsuits in those jurisdictions if the risk of voting discrimination there were the same as elsewhere in the country.

46 however, indicated that racial discrimination in voting remains “concentrated in the jurisdictions singled out for preclearance.” Northwest Austin, 557 U.S., at 203.

Although covered jurisdictions account for less than 25 percent of the country’s population, the Katz study revealed that they accounted for 56 percent of successful §2 litigation since 1982. Impact and Effectiveness 974. Controlling for population, there were nearly four times as many successful §2 cases in covered jurisdictions as there were in noncovered jurisdictions. 679 F.3d, at 874. The Katz study further found that §2 lawsuits are more likely to succeed when they are filed in covered jurisdictions than in noncovered jurisdictions. Impact and Effectiveness 974. From these findings – ignored by the Court – Congress reasonably concluded that the coverage formula continues to identify the jurisdictions of greatest concern.

The evidence before Congress, furthermore, indicated that voting in the covered jurisdictions was more racially polarized than elsewhere in the country. H.R. Rep. No. 109- 478, at 34-35. While racially polarized voting alone does not signal a constitutional violation, it is a factor that increases the vulnerability of racial minorities to discriminatory changes in voting law. The reason is twofold. First, racial polarization means that racial minorities are at risk of being systematically outvoted and having their interests underrepresented in legislatures. Second, “when political preferences fall along racial lines, the natural inclinations of incumbents and ruling parties to entrench themselves have predictable racial effects. Under circumstances of severe racial polarization, efforts to gain political advantage translate into race-specific disadvantages.” Ansolabehere, Persily, & Stewart, Regional Differences in Racial Polarization in the 2012 Presidential Election: Implications for the Constitutionality of Section 5 of the Voting Rights Act, 126 Harv. L. Rev. Forum 205, 209 (2013).

In other words, a governing political coalition has an incentive to prevent changes in the existing balance of voting power. When voting is racially polarized, efforts by the ruling party to pursue that incentive “will inevitably discriminate against a racial group.” Ibid. Just as buildings in California have a greater need to be earthquake-proofed, places where there is greater racial polarization in voting have a greater need for prophylactic measures to prevent purposeful race discrimination. This point was understood by Congress and is well recognized in the academic literature. See 2006 Reauthorization §2(b)(3), 120 Stat. 577 (“The continued evidence of racially polarized voting in each of the jurisdictions covered by the [preclearance requirement] demonstrates that racial and language minorities remain politically vulnerable”); H.R. Rep. No. 109-478, at 35; Davidson, The Recent Evolution of Voting Rights Law Affecting Racial and Language Minorities, in Quiet Revolution 21, 22.

The case for retaining a coverage formula that met needs on the ground was therefore solid. Congress might have been charged with rigidity had it afforded covered jurisdictions no way out or ignored jurisdictions that needed superintendence. Congress, however, responded to this concern. Critical components of the congressional design are the statutory provisions allowing jurisdictions to “bail out” of preclearance, and for court- ordered “bail ins.” See Northwest Austin, 557 U.S., at 199. The VRA permits a jurisdiction to bail out by showing that it has complied with the Act for ten years, and has engaged in efforts to eliminate intimidation and harassment of voters. 42 U.S.C. §1973b(a) (2006 ed. and Supp. V). It also authorizes a court to subject a noncovered jurisdiction to federal preclearance upon finding that violations of the Fourteenth and Fifteenth Amendments have occurred there. §1973a(c) (2006 ed.).

Congress was satisfied that the VRA’s bailout mechanism provided an effective means of adjusting the VRA’s coverage over time. H.R. Rep. No. 109-478, at 25 (the success of bailout “illustrates that: (1) covered status is neither permanent nor over-broad; and (2) covered status has been and continues to be within the control of the jurisdiction such that those jurisdictions that have a genuinely clean record and want to terminate coverage have the ability to do so”). Nearly 200 jurisdictions have successfully bailed out of the preclearance requirement, and DOJ has consented to every bailout application filed by an eligible jurisdiction since the current bailout procedure became effective in 1984. Brief for Federal Respondent 54. The bail-in mechanism has also worked. Several jurisdictions have been subject to federal preclearance by court orders, including the States of New Mexico and Arkansas. App. to Brief for Federal Respondent 1a-3a.

This experience exposes the inaccuracy of the Court’s portrayal of the Act as static, unchanged since 1965. Congress designed the VRA to be a dynamic statute, capable of adjusting to changing conditions. True, many covered jurisdictions have not been able to bail out due to recent acts of noncompliance with the VRA, but that truth reinforces the congressional judgment that these jurisdictions were rightfully subject to preclearance, and ought to remain under that regime.

Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today. The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story. See supra, at 18-19. Without even identifying a standard of review, the Court dismissively brushes off arguments based on “data from the record,” and declines to enter the “debat[e about] what [the] record shows.” Ante, at 20-21. One would expect more from an opinion striking at the heart of the Nation’s signal piece of civil-rights legislation.

I note the most disturbing lapses. First, by what right, given its usual restraint, does the Court even address Shelby County’s facial challenge to the VRA? Second, the Court veers away from controlling precedent regarding the “equal sovereignty” doctrine without even acknowledging that it is doing so. Third, hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments, and as just stressed, the Court does not even deign to grapple with the legislative record.

Shelby County launched a purely facial challenge to the VRA’s 2006 reauthorization. “A facial challenge to a legislative Act,” the Court has other times said, “is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987).

“[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.” Broadrick v. Oklahoma, 413 U.S. 601-611 (1973). Instead, the “judicial Power” is limited to deciding particular “Cases” and “Controversies.” U.S. Const., Art. III, §2. “Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it

48 may conceivably be applied unconstitutionally to others, in other situations not before the Court.” Broadrick, 413 U.S., at 610. Yet the Court’s opinion in this case contains not a word explaining why Congress lacks the power to subject to preclearance the particular plaintiff that initiated this lawsuit – Shelby County, Alabama. The reason for the Court’s silence is apparent, for as applied to Shelby County, the VRA’s preclearance requirement is hardly contestable.

Alabama is home to Selma, site of the “Bloody Sunday” beatings of civil-rights demonstrators that served as the catalyst for the VRA’s enactment. Following those events, Martin Luther King, Jr., led a march from Selma to Montgomery, Alabama’s capital, where he called for passage of the VRA. If the Act passed, he foresaw, progress could be made even in Alabama, but there had to be a steadfast national commitment to see the task through to completion. In King’s words, “the arc of the moral universe is long, but it bends toward justice.” G. May, Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy 144 (2013).

History has proved King right. Although circumstances in Alabama have changed, serious concerns remain. Between 1982 and 2005, Alabama had one of the highest rates of successful §2 suits, second only to its VRA-covered neighbor Mississippi. 679 F.3d, at 897 (Williams, J., dissenting). In other words, even while subject to the restraining effect of §5, Alabama was found to have “deni[ed] or abridge[d]” voting rights “on account of race or color” more frequently than nearly all other States in the Union. 42 U.S.C. §1973(a). This fact prompted the dissenting judge below to concede that “a more narrowly tailored coverage formula” capturing Alabama and a handful of other jurisdictions with an established track record of racial discrimination in voting “might be defensible.” 679 F.3d, at 897 (opinion of Williams, J.). That is an understatement. Alabama’s sorry history of §2 violations alone provides sufficient justification for Congress’ determination in 2006 that the State should remain subject to §5’s preclearance requirement.7

A few examples suffice to demonstrate that, at least in Alabama, the “current burdens” imposed by §5’s preclearance requirement are “justified by current needs.” Northwest Austin, 557 U.S., at 203. In the interim between the VRA’s 1982 and 2006 reauthorizations, this Court twice confronted purposeful racial discrimination in Alabama. In Pleasant Grove v. United States, 479 U.S. 462 (1987), the Court held that Pleasant Grove – a city in Jefferson County, Shelby County’s neighbor – engaged in purposeful discrimination by annexing all-white areas while rejecting the annexation request of an adjacent black neighborhood. The city had “shown unambiguous opposition to racial integration, both before and after the passage of the federal civil rights laws,” and its strategic annexations appeared to be an attempt “to provide for the growth of a monolithic white voting block” for “the impermissible purpose of minimizing future black voting strength.” Id., at 465, 471-472.

7 This lawsuit was filed by Shelby County, a political subdivision of Alabama, rather than by the State itself. Nevertheless, it is appropriate to judge Shelby County’s constitutional challenge in light of instances of discrimination statewide because Shelby County is subject to §5’s preclearance requirement by virtue of Alabama’s designation as a covered jurisdiction under §4(b) of the VRA. See ante, at 7. In any event, Shelby County’s recent record of employing an at-large electoral system tainted by intentional racial discrimination is by itself sufficient to justify subjecting the county to §5’s preclearance mandate. See infra, at 26.

Two years before Pleasant Grove, the Court in Hunter v. Underwood, 471 U.S. 222 (1985), struck down a provision of the Alabama Constitution that prohibited individuals convicted of misdemeanor offenses “involving moral turpitude” from voting. Id., at 223 (internal quotation marks omitted). The provision violated the Fourteenth Amendment’s Equal Protection Clause, the Court unanimously concluded, because “its original enactment was motivated by a desire to discriminate against blacks on account of race[,] and the [provision] continues to this day to have that effect.” Id., at 233.

Pleasant Grove and Hunter were not anomalies. In 1986, a Federal District Judge concluded that the at-large election systems in several Alabama counties violated §2. Dillard v. Crenshaw Cty., 640 F.Supp. 1347, 1354-1363 (MD Ala. 1986). Summarizing its findings, the court stated that “[f]rom the late 1800’s through the present, [Alabama] has consistently erected barriers to keep black persons from full and equal participation in the social, economic, and political life of the state.” Id., at 1360.

The Dillard litigation ultimately expanded to include 183 cities, counties, and school boards employing discriminatory at-large election systems. Dillard v. Baldwin Cty. Bd. of Ed., 686 F.Supp. 1459, 1461 (M.D. Ala. 1988). One of those defendants was Shelby County, which eventually signed a consent decree to resolve the claims against it. See Dillard v. Crenshaw Cty., 748 F.Supp. 819 (M.D. Ala. 1990).

Although the Dillard litigation resulted in overhauls of numerous electoral systems tainted by racial discrimination, concerns about backsliding persist. In 2008, for example, the city of Calera, located in Shelby County, requested preclearance of a redistricting plan that “would have eliminated the city’s sole majority-black district, which had been created pursuant to the consent decree in Dillard.” 811 F.Supp.2d 424, 443 (D.C. 2011). Although DOJ objected to the plan, Calera forged ahead with elections based on the unprecleared voting changes, resulting in the defeat of the incumbent African-American councilman who represented the former majority-black district. Ibid. The city’s defiance required DOJ to bring a §5 enforcement action that ultimately yielded appropriate redress, including restoration of the majority-black district. Ibid.; Brief for Respondent-Intervenors Earl Cunningham et al. 20.

A recent FBI investigation provides a further window into the persistence of racial discrimination in state politics. See United States v. McGregor, 824 F.Supp.2d 1339, 1344- 1348 (M.D. Ala. 2011). Recording devices worn by state legislators cooperating with the FBI’s investigation captured conversations between members of the state legislature and their political allies. The recorded conversations are shocking. Members of the state Senate derisively refer to African-Americans as “Aborigines” and talk openly of their aim to quash a particular gambling-related referendum because the referendum, if placed on the ballot, might increase African-American voter turnout. Id., at 1345–1346 (internal quotation marks omitted). See also id., at 1345 (legislators and their allies expressed concern that if the referendum were placed on the ballot, “‘[e]very black, every illiterate’ would be ‘bused [to the polls] on HUD financed buses’”). These conversations occurred not in the 1870’s, or even in the 1960’s, they took place in 2010. Id., at 1344-1345. The District Judge presiding over the criminal trial at which the recorded conversations were introduced commented that the “recordings represent compelling evidence that political exclusion through racism remains a real and enduring problem” in Alabama. Id., at 1347. Racist sentiments, the judge observed, “remain regrettably entrenched in the high echelons of state government.” Ibid.

These recent episodes forcefully demonstrate that §5’s preclearance requirement is constitutional as applied to Alabama and its political subdivisions.8 And under our case law, that conclusion should suffice to resolve this case. See United States v. Raines, 362 U.S. 17-25 (1960) (“[I]f the complaint here called for an application of the statute clearly constitutional under the Fifteenth Amendment, that should have been an end to the question of constitutionality.”). See also Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 743 (2003) (Scalia, J., dissenting) (where, as here, a state or local government raises a facial challenge to a federal statute on the ground that it exceeds Congress’ enforcement powers under the Civil War Amendments, the challenge fails if the opposing party is able to show that the statute “could constitutionally be applied to some jurisdictions”).

This Court has consistently rejected constitutional challenges to legislation enacted pursuant to Congress’ enforcement powers under the Civil War Amendments upon finding that the legislation was constitutional as applied to the particular set of circumstances before the Court. See United States v. Georgia, 546 U.S. 151, 159 (2006) (Title II of the Americans with Disabilities Act of 1990 (ADA) validly abrogates state sovereign immunity “insofar as [it] creates a private cause of action ... for conduct that actually violates the Fourteenth Amendment”); Tennessee v. Lane, 541 U.S. 509-534 (2004) (Title II of the ADA is constitutional “as it applies to the class of cases implicating the fundamental right of access to the courts”); Raines, 362 U.S., at 24-26 (federal statute proscribing deprivations of the right to vote based on race was constitutional as applied to the state officials before the Court, even if it could not constitutionally be applied to other parties). A similar approach is warranted here.9

The VRA’s exceptionally broad severability provision makes it particularly inappropriate for the Court to allow Shelby County to mount a facial challenge to §§4(b) and 5 of the VRA, even though application of those provisions to the county falls well within the bounds of Congress’ legislative authority. The severability provision states:

“If any provision of [this Act] or the application thereof to any person or circumstances is held invalid, the remainder of [the Act] and the application of the provision to other persons not similarly situated or to other circumstances shall not be affected thereby.” 42 U.S.C. §1973p.

In other words, even if the VRA could not constitutionally be applied to certain States – e.g., Arizona and Alaska, see ante, at 8 – §1973p calls for those unconstitutional applications to be severed, leaving the Act in place for jurisdictions as to which its application does not transgress constitutional limits.

8 Congress continued preclearance over Alabama, including Shelby County, after considering evidence of current barriers there to minority voting clout. Shelby County, thus, is no “redhead” caught up in an arbitrary scheme. See ante, at 22.

9 The Court does not contest that Alabama’s history of racial discrimination provides a sufficient basis for Congress to require Alabama and its political subdivisions to preclear electoral changes. Nevertheless, the Court asserts that Shelby County may prevail on its facial challenge to §4’s coverage formula because it is subject to §5’s preclearance requirement by virtue of that formula. See ante, at 22 (“The county was selected [for preclearance] based on th[e] [coverage] formula.”). This misses the reality that Congress decided to subject Alabama to preclearance based on evidence of continuing constitutional violations in that State. See supra, at 28, n. 8.

Nevertheless, the Court suggests that limiting the jurisdictional scope of the VRA in an appropriate case would be “to try our hand at updating the statute.” Ante, at 22. Just last Term, however, the Court rejected this very argument when addressing a materially identical severability provision, explaining that such a provision is “Congress’ explicit textual instruction to leave unaffected the remainder of [the Act]” if any particular “application is unconstitutional.” National Federation of Independent Business v. Sebelius, 567 U. S. __, __ (2012) (plurality opinion) (slip op., at 56) (internal quotation marks omitted); id., at __ (Ginsburg, J., concurring in part, concurring in judgment in part, and dissenting in part) (slip op., at 60) (agreeing with the plurality’s severability analysis). See also Raines, 362 U.S., at 23 (a statute capable of some constitutional applications may nonetheless be susceptible to a facial challenge only in “that rarest of cases where this Court can justifiably think itself able confidently to discern that Congress would not have desired its legislation to stand at all unless it could validly stand in its every application”). Leaping to resolve Shelby County’s facial challenge without considering whether application of the VRA to Shelby County is constitutional, or even addressing the VRA’s severability provision, the Court’s opinion can hardly be described as an exemplar of restrained and moderate decisionmaking. Quite the opposite. Hubris is a fit word for today’s demolition of the VRA.

The Court stops any application of §5 by holding that §4(b)’s coverage formula is unconstitutional. It pins this result, in large measure, to “the fundamental principle of equal sovereignty.” Ante, at 10-11, 23. In Katzenbach, however, the Court held, in no uncertain terms, that the principle “applies only to the terms upon which States are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.” 383 U.S., at 328-329 (emphasis added).

Katzenbach, the Court acknowledges, “rejected the notion that the [equal sovereignty] principle operate[s] as a bar on differential treatment outside [the] context [of the admission of new States].” Ante, at 11 (citing 383 U.S., at 328-329) (emphasis omitted). But the Court clouds that once clear understanding by citing dictum from Northwest Austin to convey that the principle of equal sovereignty “remains highly pertinent in assessing subsequent disparate treatment of States.” Ante, at 11 (citing 557 U.S., at 203). See also ante, at 23 (relying on Northwest Austin’s “emphasis on [the] significance” of the equal- sovereignty principle). If the Court is suggesting that dictum in Northwest Austin silently overruled Katzenbach’s limitation of the equal sovereignty doctrine to “the admission of new States,” the suggestion is untenable. Northwest Austin cited Katzenbach’s holding in the course of declining to decide whether the VRA was constitutional or even what standard of review applied to the question. 557 U.S., at 203-204. In today’s decision, the Court ratchets up what was pure dictum in Northwest Austin, attributing breadth to the equal sovereignty principle in flat contradiction of Katzenbach. The Court does so with nary an explanation of why it finds Katzenbach wrong, let alone any discussion of whether stare decisis nonetheless counsels adherence to Katzenbach’s ruling on the limited “significance” of the equal sovereignty principle.

Today’s unprecedented extension of the equal sovereignty principle outside its proper domain – the admission of new States – is capable of much mischief. Federal statutes that treat States disparately are hardly novelties. See, e.g., 28 U.S.C. §3704 (no State may operate or permit a sports-related gambling scheme, unless that State conducted such a scheme “at any time during the period beginning January 1, 1976, and ending

August 31, 1990”); 26 U.S.C. §142(l) (EPA required to locate green building project in a State meeting specified population criteria); 42 U.S.C. §3796bb (at least 50 percent of rural drug enforcement assistance funding must be allocated to States with “a population density of fifty-two or fewer persons per square mile or a State in which the largest county has fewer than one hundred and fifty thousand people, based on the decennial census of 1990 through fiscal year 1997”); §§13925, 13971 (similar population criteria for funding to combat rural domestic violence); §10136 (specifying rules applicable to Nevada’s Yucca Mountain nuclear waste site, and providing that “[n]o State, other than the State of Nevada, may receive financial assistance under this subsection after December 22, 1987”). Do such provisions remain safe given the Court’s expansion of equal sovereignty’s sway?

Of gravest concern, Congress relied on our pathmarking Katzenbach decision in each reauthorization of the VRA. It had every reason to believe that the Act’s limited geographical scope would weigh in favor of, not against, the Act’s constitutionality. See, e.g., United States v. Morrison, 529 U. S. 598 –627 (2000) (confining preclearance regime to States with a record of discrimination bolstered the VRA’s constitutionality). Congress could hardly have foreseen that the VRA’s limited geographic reach would render the Act constitutionally suspect. See Persily 195 (“[S]upporters of the Act sought to develop an evidentiary record for the principal purpose of explaining why the covered jurisdictions should remain covered, rather than justifying the coverage of certain jurisdictions but not others.”).

In the Court’s conception, it appears, defenders of the VRA could not prevail upon showing what the record overwhelmingly bears out, i.e., that there is a need for continuing the preclearance regime in covered States. In addition, the defenders would have to disprove the existence of a comparable need elsewhere. See Tr. of Oral Arg. 61-62 (suggesting that proof of egregious episodes of racial discrimination in covered jurisdictions would not suffice to carry the day for the VRA, unless such episodes are shown to be absent elsewhere). I am aware of no precedent for imposing such a double burden on defenders of legislation.

The Court has time and again declined to upset legislation of this genre unless there was no or almost no evidence of unconstitutional action by States. See, e.g., City of Boerne v. Flores, 521 U.S. 507, 530 (1997) (legislative record “mention[ed] no episodes [of the kind the legislation aimed to check] occurring in the past 40 years”). No such claim can be made about the congressional record for the 2006 VRA reauthorization. Given a record replete with examples of denial or abridgment of a paramount federal right, the Court should have left the matter where it belongs: in Congress’ bailiwick.

Instead, the Court strikes §4(b)’s coverage provision because, in its view, the provision is not based on “current conditions.” Ante, at 17. It discounts, however, that one such condition was the preclearance remedy in place in the covered jurisdictions, a remedy Congress designed both to catch discrimination before it causes harm, and to guard against return to old ways. 2006 Reauthorization §2(b)(3), (9). Volumes of evidence supported Congress’ determination that the prospect of retrogression was real. Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.

But, the Court insists, the coverage formula is no good; it is based on “decades-old data and eradicated practices.” Ante, at 18. Even if the legislative record shows, as engaging with it would reveal, that the formula accurately identifies the jurisdictions with the worst conditions of voting discrimination, that is of no moment, as the Court sees it. Congress, the Court decrees, must “star[t] from scratch.” Ante, at 23. I do not see why that should be so.

Congress’ chore was different in 1965 than it was in 2006. In 1965, there were a “small number of States. . . which in most instances were familiar to Congress by name,” on which Congress fixed its attention. Katzenbach, 383 U.S., at 328. In drafting the coverage formula, “Congress began work with reliable evidence of actual voting discrimination in a great majority of the States” it sought to target. Id., at 329. “The formula [Congress] eventually evolved to describe these areas” also captured a few States that had not been the subject of congressional factfinding. Ibid. Nevertheless, the Court upheld the formula in its entirety, finding it fair “to infer a significant danger of the evil” in all places the formula covered. Ibid.

The situation Congress faced in 2006, when it took up reauthorization of the coverage formula, was not the same. By then, the formula had been in effect for many years, and all of the jurisdictions covered by it were “familiar to Congress by name.” Id., at 328. The question before Congress: Was there still a sufficient basis to support continued application of the preclearance remedy in each of those already-identified places? There was at that point no chance that the formula might inadvertently sweep in new areas that were not the subject of congressional findings. And Congress could determine from the record whether the jurisdictions captured by the coverage formula still belonged under the preclearance regime. If they did, there was no need to alter the formula. That is why the Court, in addressing prior reauthorizations of the VRA, did not question the continuing “relevance” of the formula.

Consider once again the components of the record before Congress in 2006. The coverage provision identified a known list of places with an undisputed history of serious problems with racial discrimination in voting. Recent evidence relating to Alabama and its counties was there for all to see. Multiple Supreme Court decisions had upheld the coverage provision, most recently in 1999. There was extensive evidence that, due to the preclearance mechanism, conditions in the covered jurisdictions had notably improved. And there was evidence that preclearance was still having a substantial real-world effect, having stopped hundreds of discriminatory voting changes in the covered jurisdictions since the last reauthorization. In addition, there was evidence that racial polarization in voting was higher in covered jurisdictions than elsewhere, increasing the vulnerability of minority citizens in those jurisdictions. And countless witnesses, reports, and case studies documented continuing problems with voting discrimination in those jurisdictions. In light of this record, Congress had more than a reasonable basis to conclude that the existing coverage formula was not out of sync with conditions on the ground in covered areas. And certainly Shelby County was no candidate for release through the mechanism Congress provided. See supra, at 22-23, 26-28.

The Court holds §4(b) invalid on the ground that it is “irrational to base coverage on the use of voting tests 40 years ago, when such tests have been illegal since that time.” Ante, at 23. But the Court disregards what Congress set about to do in enacting the VRA. That extraordinary legislation scarcely stopped at the particular tests and devices that happened to exist in 1965. The grand aim of the Act is to secure to all in our polity equal

54 citizenship stature, a voice in our democracy undiluted by race. As the record for the 2006 reauthorization makes abundantly clear, second-generation barriers to minority voting rights have emerged in the covered jurisdictions as attempted substitutes for the first- generation barriers that originally triggered preclearance in those jurisdictions. See supra, at 5-6, 8, 15-17.

The sad irony of today’s decision lies in its utter failure to grasp why the VRA has proven effective. The Court appears to believe that the VRA’s success in eliminating the specific devices extant in 1965 means that preclearance is no longer needed. Ante, at 21-22, 23- 24. With that belief, and the argument derived from it, history repeats itself. The same assumption – that the problem could be solved when particular methods of voting discrimination are identified and eliminated – was indulged and proved wrong repeatedly prior to the VRA’s enactment. Unlike prior statutes, which singled out particular tests or devices, the VRA is grounded in Congress’ recognition of the “variety and persistence” of measures designed to impair minority voting rights. Katzenbach, 383 U.S., at 311; supra, at 2. In truth, the evolution of voting discrimination into more subtle second-generation barriers is powerful evidence that a remedy as effective as preclearance remains vital to protect minority voting rights and prevent backsliding.

Beyond question, the VRA is no ordinary legislation. It is extraordinary because Congress embarked on a mission long delayed and of extraordinary importance: to realize the purpose and promise of the Fifteenth Amendment. For a half century, a concerted effort has been made to end racial discrimination in voting. Thanks to the Voting Rights Act, progress once the subject of a dream has been achieved and continues to be made.

The record supporting the 2006 reauthorization of the VRA is also extraordinary. It was described by the Chairman of the House Judiciary Committee as “one of the most extensive considerations of any piece of legislation that the United States Congress has dealt with in the 27½ years” he had served in the House. 152 Cong. Rec. H5143 (July 13, 2006) (statement of Rep. Sensenbrenner). After exhaustive evidence-gathering and deliberative process, Congress reauthorized the VRA, including the coverage provision, with overwhelming bipartisan support. It was the judgment of Congress that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.” 2006 Reauthorization §2(b)(7), 120Stat. 577. That determination of the body empowered to enforce the Civil War Amendments “by appropriate legislation” merits this Court’s utmost respect. In my judgment, the Court errs egregiously by overriding Congress’ decision.

* * *

For the reasons stated, I would affirm the judgment of the Court of Appeals.