More on Weber
Methods are our focus. Substantive law is not.
Rehnquist and Brennan adopted an “originalist” approach. Brudney argued that this approach could end up too “wooden”. He argues that the continuing effects of past discrimination were not contemplated in the legislative history.
What about Blackmun? It’s based on a “fairness” approach. You should be able to have voluntary affirmative action without fear of getting sued by whites.
There is a distinction between how Blackmun and Brennan reach the same result. What Brennan and Rehnquist are doing is more familiar for us. They take a sort of “archeological” approach. Blackmun takes a more “dynamic” approach. We “take the world as we find it” and figure out what policy would be most consistent with the statute. How do the values of the statute get translated into today’s world? Also, we can’t really figure out what Congress intended or would have done.
Does Blackmun overstep his role as a judge? Is he unilaterally setting a new path for policy?
The basic notion of statutory interpretation is that courts are agents of Congress. Courts are supposed to implement that which Congress has done.
You can assume that every legislature has a “meta-intent”, which is that they want their statutes to be effective over time. They don’t “sunset” their statutes after a certain amount of years in order to revisit them. But legislatures hope that statutes will be read sympathetically to make it effective over time. So Brudney says that “dynamic interpretation” is more candid about what courts do than the “archeological approach”.
Brudney argues that establishing “color-blindness” didn’t create the kinds of gains in equality that Congress had hoped for.
So the Supreme Court may be interpreting the statute in order to not just get “color-blindness” but also “results”. Congress revisited the statute in 1972 and fully endorsed Griggs.
The Supreme Court does results-oriented interpretation a lot more often than they’re willing to admit. If they get it wrong, Congress could just go back and fix it, and maybe they should if there’s really a big problem.
So part of what judges are trying to do is to bring the values of the statute into the future each time they interpret it.
It’s not realistic to think the Congress can go back and fix even a small fraction of statutes that are modified by interpretation. Congress will want to address issues prospectively rather than go back and fix old laws.
Some people might argue that affirmative action is bad as policy.
The key phrase from Weber is “traditionally segregated job categories”. O’Connor sees the problem as a “numerical” problem. To O’Connor, this phrase means “traditionally segregated by that employer”. She ties the phrase to the idea of some effort by the employer.
Is the justification for voluntary affirmative action limited in Weber to situations where the employer is seeking to address their own arguable violations? What did Weber contemplate as a predicate for allowing affirmative action?
Another interpretation is that employers voluntarily tried to address societal imbalances. Sometimes the justices will disagree about not just what the legislative history means, but also how to apply it to the “next case”.
This is different because it’s sex, not race. We know the entire history of the sex discrimination provision.
What does the text say? Does the text discriminate between sex discrimination and race discrimination? No.
Consider Justice Stevens’s concurrence. What if Weber had said that § 703 (j) was just window-dressing, such that affirmative action could actually be required in some cases? What is Stevens’s point about Weber? Stevens thinks this case and Bakke were wrongly decided.
It’s important to understand that we have a central value here: if you could revisit every interpretation, then we wouldn’t have stable, orderly, predictable development of the law. Litigants would be constantly trying to relitigate the same decisions. Part of why stare decisis exists is that “it’s not all about values”.
Why isn’t Scalia happy about this? Why does he think stare decisis is inapplicable here? He’s not going to take on stare decisis, since it’s an anchor of the legal system. If courts can’t be bound by the train of decisions, then you’ll simply have a lottery every time a case comes up.
 That’s who Brudney clerked for a year or two after this opinion.