Judicial Review and Judicial Power in the Supreme Court

The Supreme Court in American Society

Kermit L. Hall, Kermit L. Hall

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781135691530
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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

Copyright 1993 by Northwestern University, School of Law	Printed in U.S.A.
Northwestern University Law Review	Vol. 88, No. 1

DEFERENCE TO POLITICAL DECISIONMAKERS AND THE PREFERRED SCOPE OF JUDICIAL REVIEW

Nicholas S. Zeppos^*

Central States, Southeast & Southwest Areas Pension Fund v. Lady Baltimore Foods, Inc.¹ poses a puzzle for constitutional scholars. Central States Pension Fund brought an action against Lady Baltimore Foods seeking to recover monies owed upon Lady Baltimore’s withdrawal from a multiemployer pension plan.² The Multiemployer Pension Plan Amendments Act of 1980 (MPPAA)³ makes companies liable if they withdraw from a multiemployer plan. The purpose of the law is to make sure that employers do not withdraw from a multiemployer plan and leave the remaining participants with the cost of paying benefits to the withdrawing company’s workers. To prevent mass withdrawals on the eve of enactment, the MPPAA provided for retroactive liability.⁴

In the midst of the litigation, Lady Baltimore, a Kansas corporation, managed (with the assistance of Senator Robert Dole)⁵ to get a statute passed which eliminated its withdrawal liability.⁶ What began as a claim by Central States under the MPPAA for withdrawal liability now became a challenge to the constitutionality of the Lady Baltimore relief statute. The pension fund argued that the retroactive elimination of Lady Baltimore’s liability (or Central States’ asset) violated the Due Process and Takings Clauses of the Fifth Amendment.⁷

Any challenge to the constitutionality of a federal statute affecting economic rights carries a heavy burden.⁸ Certainly under application of the traditional rational basis test, the pension fund’s claim should have been rejected.⁹ But the pension fund wanted more in terms of judicial scrutiny. It was prepared to tell the court that the statute was unfair, irrational, or worse yet, a special interest statute without any public purpose.¹⁰ The law simply took money from one person’s pocket (the pension fund) and put it in another’s (Lady Baltimore).

This all seemed a bit peculiar to the court. Lady Baltimore needed the retroactive relief from withdrawal liability only because Congress had imposed liability on employers in the original statute.¹¹ Worse yet, the Supreme Court, at the urging of pension funds, had unanimously upheld the retroactive withdrawal liability imposed by the MPPAA.¹² If the law retroactively relieving Lady Baltimore of liability was unconstitutional (it robbed Peter to pay Paul), the same conclusion ought to hold for the original MPPAA (which robbed Paul to pay Peter).

Needless to say, the court rejected Central States’ constitutional challenge.¹³ Yet the pension fund’s litigation position raises important questions about the nature and scope of judicial review of federal statutes. Why would the pension fund, beneficiary of not only the MPPAA but other federal statutes as well, have gone to court and urged a position that might have given it a victory, but would have also jeopardized the legislative bargains it had entered or might enter into later?

Maybe the pension fund thought it could try to rob the employer of the fruits of its legislative victory because it saw the Supreme Court cases upholding the retroactivity of the MPPAA as final. The pension fund and its leaders might have been content with short-term gains and not worried about the potential inability to have future beneficial laws ratified. Or maybe the pension fund and its leaders, and lawyers, were just stupid. A rational pension fund would have taken the loss of the second retroactive legislation because it would have wanted its retroactive laws upheld.

One thing is clear. The activist position urged by the pension fund is contrary to the deferential stance argued for by Thayer in his classic essay.¹⁴ At the same time, however, the somewhat curious and inconsistent litigation position taken by the pension fund in Lady Baltimore Foods demonstrates the limits of Thayer’s analysis. Why would a group seek to set aside an act of Congress? More specifically in the Lady Baltimore Foods context, why would a group take the risk that the standard of judicial review it was arguing for might, if adopted, be used against it by other opposing groups to upset statutes it manages to get enacted?

It is this question, and a possible answer, that I explore in this Article. What standard of judicial review would groups and their members choose to have applied to federal statutes? Would they opt for Thayer’s deferential approach or would they select a more aggressive Court? I argue that the odd advocacy in Lady Baltimore Foods provides a clue. Groups—including those that sometimes prevail in the legislative arena—prefer a more aggressive standard of judicial review even though this might lead to the invalidation of beneficial federal laws. Thayer attacks judicial review as contrary to, and ultimately debilitating of, representative government but fails to inquire into a basic question: what standard of judicial review would groups select?

I first argue that Thayer was correct in expressing concern about the Court actively enforcing constitutional norms against Congress. My project then, initially, is empirical—to demonstrate that the Court seeks to upset legislative transactions by application of the Constitution. Based on my claim that the Court is actively engaged in invoking constitutional values against Congress, I develop a second point. Constitutional law has repudiated Thayer’s deferential approach because of the preferences of interest groups and their individual members. Here I seek to offer a somewhat different explanation than typically offered by those who look at the relationship between groups and the legitimate scope of judicial review. Groups must choose between a Court largely upholding statutes or one more actively supervisin...