401 CHRONICLESna different course if it so chooses.”nBut by 1987, Congress had not set a diffierent course. ThenSanta Clara Court was quick to regard this as support for itsninterpretation of Title VII; “Congress has not amended thenstatute to reject our construction, nor have any suchnamendments ever been proposed, and we therefore maynassume that our interpretation [in Weber] was correct.”nJustice Stevens concurred in the majority opinion, despitenhis frank acknowledgment that “the only problem for me isnwhether to adhere to an authoritative construction of thenAct that is at odds with my understanding of the actualnintent of the authors of the legislation.” For Justice Stevensnit was enough to rely on precedent. Justice O’Connor alsonconcurred on the basis of stare decisis. Justice O’Connornpointed out that “[n]one of the parties in this case hasnsuggested that we overrule Weber,” and that given Weber asna baseline, the Santa Clara affirmative action plan did notnrun afoul of Tide VII as interpreted by Weber.nSanta Clara is an interesting case because of how thenmajority used Weber to reach its result. The majoritynopinion justified its conclusion by Congressional inactionnafter Weber. And two concurring Justices, enough to swingnthe vote the other way, scrupulously avoided repeating antextual analysis by relying on Weber as precedent. JusticenStevens implied that Weber, in which he took no part, wasnwrongly decided. Justice O’Connor shifted the issue from anviolation of Titie VII to a violation of the Weber decision.nWhat, exactly, is the significance of Congressional inactionnwhen the Court rewrites a statute to make it conform tonits “underlying purposes”? A statute that is clear on its facenbut can be interpreted as incompatible with its supposednpurpose or “spirit” may reflect very real competing concerns.nThere will often be several purposes underlying thenmovement of legislation from its inception to passage, andnthe purpose apparent to those who peruse the legislativenhistory may depend upon the vehemence of the proponentsnof any given “purpose” for the bill or the frequency withnwhich that position is asserted in debate. The attempt tondiscern the spirit or purpose is so often futile that it ought tonbe examined only when absolutely necessary.nMore importantly, a more insidious use of judicial powernmay occur in exactly those situations where the statute isnclear but where underlying tensions and competing interestsnAre there other options to thenAIDSnISSUE?nFind out in “A SOUNDER ANTI-AIDS OPTION’nby John A. HowardnSend this coupon and a check for $2.50 to:nOccasional Papers #16nThe Rocl(fard Instituten934 N. Main Street, Rockford, IL 61103nnnin the legislative branch previously operated to inhibit thenfull exercise of legislative will. Titie VII explicitiy prohibitednany and all discrimination. To be sure, some members ofnCongress would have liked to see Title VII embracenvoluntary affirmative action even without a showing of pastndiscrimination. Other members would have preferred not tonface the issue at all. And, quite obviously, others sought tonmaintain the status quo ante. There is, in short, everynreason to expect that statutes that address fundamentalnissues frequentiy represent the outer political limit of thenlegislative will.nWhat, then, of judicial interpretation that goes beyondnthat outer limit? If Congress could not resolve issues,nbeyond flatiy prohibiting discrimination in the first instance,nthere is nothing to suggest that Congress could do itntoday. And this conclusion applies equally to Congressionalnratification or disavowal of the Santa ClaralWeber decisions.nBland statements that Congress could have overrulednWeher ignore this political dimension and are a poor sourcenof authority for continuing this exercise of judicial power.nIn this instance, stare decisis is a fancy name for “bootstrapping.”nThe real question, raised by the dissenting opinions ofnJustice Rehnquist in Weber and Justice Scalia in SantanClara, was whether the text of the statute offered guidancento resolve the issues before the Supreme Court. Had thatnquestion been answered affirmatively, the Court wouldnhave been faced with the statute’s plain terms in prohibitingndiscrimination. That should have been the end of theninquiry.nTo achieve by judicial fiat what could not be accomplishednthrough the legislative process is not only a usurpationnof legislative prerogative, it is also contrary to thennature of majority rule. However we may seek to protect anpolitical minority from the potentially harsh imposition ofnmajority will, these concerns are not implicated here. Thencomposition of Congress, the checks and balances providednto the three branches of government, federalism, and thenprotection of individual liberties found in the Amendmentsnall act to soften this result. Beyond that, majority rulengoverns. And it governs through the legislature, not thencourts. Only when issues are debated in a forum withnpolitical accountability can we be sure of achieving majoritariannwill.nThe official majority will as of 1964 was expressednliterally in Title VII. That is to say, the majority was willingnto be fair and support some progress in the strides ofnminorities toward equal participation in the work force, butnit was not willing to discriminate against itself to achieventhat goal. The Weber and Santa Clara decisions do andisservice to both Congress and the electorate by deprivingneach of the impetus so often needed to accomplish thendifficult task of passing legislation that addresses great issues.nThe result is that instead of Congress debating how andnwhen we will redress discrimination in the work place, thenimplementation of affirmative action will be left by Congressnto judicial resolution. Decisions like Weber and SantanClara will, in the long run, allow Congress to shrink fromntackling the really controversial issues. If even patentiy clearnstatutes can be rewritten, imagine what ambiguity cannachieve.n