487 U. S. 223
June 22, 1988
In the 1978 ruling Manhart, the Court ruled that pension contributions which differ based on sex are illegal. In the 1983 ruling Norris, the Court ruled that pension payouts which differ based on sex are illegal. Until the Norris decision, Florida had pension payouts which differed based on sex. There were two questions. First, could sex-based underpayment between Manhart and Norris be retroactively recouped. Second, could pension plans that started paying out before Norris be prospectively adjusted upward.
The Court answered these questions in the negative, in a 5-4 vote. Kennedy said that Manhart in no way implied that sex-based pension payouts were clearly illegal. Because that question remained entirely unsettled before Norris, there could be no liability for extra payment before the date of the latter decision. Kennedy explained that retroactive liability could destroy the fiscal workability of pension plans, and that it punished states for flaws that they had no way of knowing about. Moving on to the question of prospective adjustment, Kennedy claimed that it was still a retroactive remedy. It threw the balance of contributions and payouts off-kilter, and thus still punished states for violations they could not have known about.
Blackmun, joined by Brennan and Marshall, though Manhart clearly implied that all sex-based pension workings were illegal, be they contributions or payouts. Because Florida should have understood the implications of Manhart, he felt that workers should be entitled to retroactive payments since the Manhart decision, and an increase in payments going forward. Blackmun did concede that pensioners who began receiving payments prior to Manhart were out of luck. Stevens was bolder. He felt that every unequal paycheck was a new violation. Thus, even pensioners who began receiving payments before Manhart deserved to have all payments since that decision (and all payments going forward) adjusted upward.
This was a very good decision – once which favored prudential concerns over fiscally irresponsible utopianism. In fact, those ‘discriminated’ against in the payouts were men, not women, and the ‘discrimination’ was only present in some payout plans out of all those offered. This ruling was also good because it refused to penalize an institution for not correctly guessing the Supreme Court’s next doctrinal move. The Supreme Court has this horrendously annoying shtick of being ultra coy and cagey on a specific issue; but then, when it finally makes a direct ruling, it will pretend that this ruling should have been obvious for years beforehand. This is what the dissent tries to do to the Norris ruling – pretend that it was totally obvious from Manhart. It wasn’t, and I’m glad the majority slapped them down.