Legislation
Class Notes
More on Gregory v. Ashcroft
Why
are appointed judges non-employees
under § 630(f) of the ADEA? What about
the canons of avoiding irrational or unconstitutional results? Couldn’t elected judges be unseated by the
voters? So isn’t it irrational to treat
appointed judges differently? Could this
fail the rational basis test? Only a possible or fairly reasonable unconstitutional interpretation of a statute
could cause the Court to want to change the statute.
We’re
talking about the super strong clear
statement rule. If the balance
between federal and state power is going to be altered by statute, that statute
must be extremely clearly stated.
Garcia says that the states don’t
need any extra judicial protection under the Tenth Amendment. The present case was heard at a time when Garcia was still good law.
Do
we have a Tenth Amendment problem in this case?
Five years earlier, the Court said that the political process resolves
all issues of dual sovereignty. Now the
Court is creating a canon application whether a constitutional problem could have been created, so it must be
avoided.
The
Court is trying to do something without having to overrule Garcia.
Debunking and defending the
canons
Where
are we? It would be easy to take Llewellyn’s
table and say that canons should be completely debunked. But canons influence the development of a
law. Judges rarely decide cases solely
on language canons. But why do judges
rely on such canons? Do canons effectively
constrain judges? Judges like them and
use them. Maybe the canons are a kind of
a “checklist” to stimulate reflection on the meaning of words.
Public
choice theorists have a different take on this.
They believe that judges have policy preferences even if they couch them
in more principled terms. Canons come
into play when judges don’t have a clear point of view. Why might they not have a clear point of
view? Maybe the case isn’t in one of
their areas of expertise. If the courts
are construing statutes on very different subjects, the canons can relieve them
of the need to get detailed knowledge of such subjects.
If
you don’t know exactly what Congress meant, you give Congress the chance to
speak again. For example, Brudney found
that canons were used very frequently in ERISA cases where the language was
very complicated. When using canons, are
you just masking the fact that you don’t know what you’re talking about?
The
canon debate reflects a tension between law and politics or the perception of
law and politics. Are canons just easy
recourse to things that “look law-like”?