The Least Dangerous Branch: Separation of Powers and Court-Packing

The Supreme Court in American Society

Kermit L. Hall, Kermit L. Hall

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135691813
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Available as a single volume or as part of the 10 volume set Supreme Court in American Society

Reneging on History? Playing the Court/Congress/President Civil Rights Game

William N. Eskridge, Jr.^†

Brenda Patterson is a woman of color. She worked for McLean Credit Union as a file clerk and teller from 1972 until she was fired in 1982. Brenda Patterson sued McLean for racial discrimination based on its conduct towards her while she was an employee. She testified at trial that her employer and its supervisors gave her more demeaning work than similarly situated white employees, passed over her for promotions given less qualified white employees and did not even inform her of promotion opportunities, denied wage increases routinely given other employees, and subjected her to gratuitous racial slurs, such as the opinion that “blacks are known to work slower than whites by nature.”¹

Section 1981 of title 42 provides that all persons “shall have the same right… to make and enforce contracts … as is enjoyed by white citizens.”² Brenda Patterson's claim asserted that the racial harassment she experienced while a McLean Credit Union employee violated her right “to make and enforce contracts,” in this case, her employment contract. The district court refused to submit her claim to the jury on the ground that racial harassment relating to conditions of employment is not actionable under section 1981. On June 15, 1989, the United States Supreme Court, by a five-to-four vote, agreed with that interpretation. The Court in Patterson v. McLean Credit Union³ reasoned, in part, that interpreting section 1981 to cover claims of on-the-job racial harassment would interfere with the operation of Congress' more recent regulation of workplace discrimination in title VII of the Civil Rights Act of 1964.⁴

Ironically, however, the Court was giving title VII a narrow construction. On June 5 by a five-to-four vote, the Court in Wards Cove Packing Co. v. Atonio⁵ held that in discriminatory impact cases under title VII, the employee must prove not only a disparate impact, but also that the employer has no reasonable business justification for its discriminatory practices.⁶ On May 1, a Court divided on other issues indicated in Price Waterhouse v. Hopkins⁷ that employment decisions motivated in part by prejudice do not violate title VII if the employer can show after the fact that the same decision would have been made irrespective of the intentional discrimination.⁸

Following the trend set by Price Waterhouse and Wards Cove, the Court held in Martin v. Wilks⁹ that white employees who were not parties to the original litigation could nonetheless challenge court-approved consent decrees providing for affirmative action to remedy past violations of title VII and the fourteenth amendment. The Martin case was decided by a five-to-four vote on June 12. That same day, a five-to-three majority held, in Lorance v. AT&T Technologies,¹⁰ that title VII's statute of limitations for challenging seniority plans begins to run when the plan is adopted, rather than when the plan is applied to an individual.¹¹ On June 22, a five-to-two vote of the Court in Independent Federation of Flight Attendants v. Zipes¹² held that title VII does not provide for the statutory award of counsel fees against intervening defendants unless the intervenors' action is frivolous.¹³

These six Supreme Court decisions of May and June 1989 triggered a national political debate. Each decision created practical difficulties for plaintiffs seeking relief for workplace discrimination under either title VII or section 1981. As a group, the decisions appeared an effort by five Justices¹⁴ to narrow the protections provided by federal law for workplace discrimination. Civil rights groups in Washington, D.C., immediately started to devise legislation to overrule as many of the decisions as possible. Legislation was introduced in February 1990 to overrule all six decisions, as well as three earlier Supreme Court decisions that also affected workplace discrimination lawsuits.¹⁵ Congress passed the legislation, with amendments, in early October. The President vetoed the bill on the grounds that it did more than just overrule the unpopular decisions, and Congress was not able to override the veto. The debate continues. Similar legislation has been introduced in the 102nd Congress.¹⁶

The debate over the proposed Civil Rights Act of 1990 dramatizes the centrality of statutes and their interpretation to the nation's civil rights¹⁷ agenda. The debate also raises issues about the nature of statutory interpretation and the role of Congress. What interests me about the 1990 debate is the rhetoric about the dynamics of Court/Congress interaction in the implementation of civil rights statutes. Consider this representative passage that appeared during the House discussion:

One thing is true about our history, and that [is] there always has been an ever-continuing struggle, a struggle for freedom and justice and equality.

… And by the 1960's we reached a consensus, a consensus that we would move in a direction that would allow the doors to be opened and allow remedies to be put in place and say that discrimination was wrong.

For 25 years that process worked. Then in 1988 and 1989 a series of court decisions came about that changed that fundamental process and those definitions.¹⁸

Such rhetoric whiggishly oversimplifies the Court/Congress interaction over civil rights.

Certainly the proposed Civil Rights Act of 1990 was unprecedented in its sweeping reform of the civil rights agenda. The Act, however, did not emerge out of thin air as a simple retort to Patterson and the other decisions. Actually the Act was the culmination of a fifteen-year process during which the political preferences of the Court and Congress have diverged. As I argue in more detail in Part I, the “consensus” of the 1960s was largely driven by the Court and the President. The consensus was the coincidence of leftward movement on civil rights by a Brown-inspired Warren Court, by a Presidency that came to pursue the Brown revolution aggressively, and by a Congress slowly overcoming the longstanding Southern obstruction of civil rights legislation. This consensus began to break down in the 1970s. The Court and the Presidency moved to the right while Congress and the relevant committees moved to the left. Between 1976 and 1988, this divergence of opinion manifested itself in a series of legislative overrides of Supreme Court decisions. At times, the acrimony between the branches was just as intense as that in the 1990 debate.

The rhetoric quoted above also wrongly assumes a mechanical role for the Court. The Congressman seems shocked that the Court “changed that fundamental process” by which civil rights laws had been enforced since the 1960s. Much of Congress' criticism of the 1989 decisions accused the Court of ignoring the original legislative intent in title VII. In my view, this criticism is off the mark. Statutory interpretation is an inherently dynamic process: the text evolves as it is interpreted. The Court's interpretation of our civil rights laws has been particularly dynamic.¹⁹ Thus, Congress' objection should not be that the Court has changed the statute, but that the Court has changed it in ways the current legislative majorities do not like.

To be sure, traditional theory emphasizes a mechanical approach to statutory interpretation under which the Court is nothing more than the “honest agent” of Congress.²⁰ However, the Constitution itself considers the Court a co-equal branch of the national government. Indeed, at least some of the original constitutional debates considered the Court a political branch, whose statutory as well as constitutional interpretations would serve as checks on the other branches.²¹ Part II of this Article adopts that original constitutional perspective and develops a model of the Court as a political actor in statutory interpretation. The model is based upon a game played by the Court, Congress, and the President in statutory implementation. Part II uses the game model as a way of understanding the historical evolution of the Court/Congress/President interaction for civil rights statutes from 1962 to 1990.

The model suggests that the Court's influence on policymaking was most significant at two points: at the period's beginning (1962–72), when the Court was to the left of Congress and relevant committees, and at the period's end (1981–90), when both the Court and the President were significantly to the right of Congress and its committees. The model's success in explaining the Court/Congress/President interaction reaffirms the original constitutional understanding that the Court and the President and the Congress (not Congress alone) would determine statutory policy. The model also predicts that, given the likelihood that the Court will remain to the right of Congress, the most important variable for civil rights policy in the 1990s will be the President's agenda.

Part III explores some normative and doctrinal implications of these game theoretic dynamics. In particular, Part III explores the model's suggestion that the Court is a political actor implementing its ow...