Legislation
Class Notes
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?[1] 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.
Johnson v.
Transportation Agency,
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.