Much has been written in recent years on how courts construe law, whether it is the Constitution or a statute. The discussion typically addresses the judiciary’s search for the “intent” of the framers or legislators and reflects a continuing debate on what limitations our system of government places on a court when it applies written law to the facts of a specific case. This debate has, for the most part, focused on the extent to which courts usurp legislative functions by interpreting statutes in a way that adds their own ideological gloss.
Unfortunately, the ambiguities frequently found in texts of statutes passed by Congress invite—even demand—resort to external aids of interpretation, if only because the legislative branch has sometimes embraced ambiguity for political reasons with every expectation that the judiciary would fill both the political void and the text of a statute. As a result, the judiciary increasingly has had to search for the majority will with relatively little help from the legislature.
Is the resort to anything other than the text of laws ever inappropriate? Phrases such as “original intent” and “evolving standards of decency” and “supported by the legislative history” reinforce the impression that the text of a statute rarely serves to resolve its meaning. When interpreting a statute that is ambiguous, internally contradictory, or potentially conflicting with other law, such external aids as legislative history are necessary. But what of a statute whose meaning is clear on its face? We might expect to find judicial opinions that are no more than a recitation of the relevant statutes. Instead, a court may well decide to edit the text because it perceives incongruities between the statute as written and its purposes as gleaned from external evidence.
Although this type of interpretation represents a more blatant exercise of judicial power than the interpretation of ambiguous statutes, in doing so the courts encounter surprisingly little protest. Judicial editing may appear to concern some observers less than unrestrained judicial interpretation, in part, because Congress could more easily rectify the result. While judicial interpretation of an ambiguous statute is so subtle an exercise of legislative prerogative that the cloak of legitimacy provided by “statutory construction” would generally shield a decision from scrutiny, judicial revision of an otherwise unequivocal text is so dramatic that it should compel a legislature to react.
This is, however, too simple. When would a court take such a dramatic step? A case involving insignificant issues hardly invites a court to bother with reading beyond the text. It is more likely that a court would feel compelled to ignore the text and search for something more, in controversial cases, and it is not at all clear that Congress would ever be able to rise to the judicial challenge when great societal issues are at stake.
The Supreme Court’s recent decision in Johnson v. Transportation Agency, Santa Clara County, California illustrates this point. The Court in Santa Clara reviewed an affirmative action plan that was challenged under Title VII of the Civil Rights Act of 1964. The affirmative action plan was not intended to redress identifiable discrimination; instead, the plan was intended to change “conspicuous imbalances in job categories traditionally segregated by race and sex” to reflect the makeup of the available work force. Race and sex were each to be just “one factor” taken into account in evaluating candidates for promotion. Justice Brennan, writing for the majority, held that this affirmative action plan was “fully consistent” with Title VII.
Title VII provides that “[i]t shall be an unlawful employment practice for an employer (1) . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees . . . in any way which would tend to deprive any individual of employment opportunities . . . because of such individual’s race, color, religion, sex, or national origin.” On its face, the text of Title VII could not be more clear. It expressly prohibits the very activities contemplated by the affirmative action plan reviewed in Santa Clara. How the Court found that Title VII could accommodate this plan in the face of such clear statutory language to the contrary is no less interesting than the policy implications of the decision itself.
The Santa Clara decision was primarily the product of an earlier Supreme Court decision, Steelworkers v. Weber, decided in 1979. In Weber, Justice Brennan, writing for the majority, concluded for the first time that Title VII did not prohibit an affirmative action plan that reserved 50 percent of all openings in a craft-training program for black employees until the percentage of black craftworkers reflected the percentage of blacks in the local labor force. Acknowledging that a literal interpretation of Title VII seemed to preclude any discrimination, Brennan nonetheless concluded that it was necessary to look beyond the text to the legislative history because the letter of the statute was “not within its spirit.” How Justice Brennan reached this conclusion without already having looked beyond the letter of the statute was not explained.
The Weber Court concluded that the purpose of the statute, expressed in themes found in the legislative history, was at odds with a literal interpretation. The first theme was Congress’ concern to provide opportunities for blacks in the economy. The legislative history was replete with examples of opponents alleging that Title VII could require employers to grant preferential treatment to minorities. The objections were answered by an amendment stating that “nothing . . . shall be interpreted to require any employers . . . to grant preferential treatment.” From this, the Court discovered a second theme: Had Congress intended to prohibit all discrimination, it could “easily” have provided that Title VII would not “require or permit preferential treatment.”
Concluding that the statute’s purposes were at odds with its literal terms required the Court to make several assumptions. First, they assumed that a mere prohibition of discrimination could not possibly provide employment opportunities for blacks; rather, some reverse discrimination was always necessary.
Secondly, they assumed that there was no prohibition against preferential treatment. The Weber Court emphasized the legislators’ concern that Title VII would unduly regulate private businesses. But rather than interpret this as a concern that Title VII might place the federal government in an intrusive regulatory role, the Court cited this concern in concluding that Title VII thereby left private businesses free to structure affirmative action plans. The Court’s reading, however, forces the somewhat implausible conclusion that legislators in 1964 were worried that Title VII would prevent previously discriminatory businesses from aggressively remedying their past wrongs.
Finally, the Court concluded that the appearance of “require” rather than “require or permit” implied that Congress intended to allow private employers to grant preferential treatment to minorities. One may well question the legitimacy of such an inference in the face of an express provision. Moreover, the Court’s conclusion conflicts with repeated statements of the bills’ sponsors. It is revealing that, for all his reliance on external aids. Justice Brennan dismissed that particular legislative history with little discussion. Justice Blackmun, concurring in the majority opinion, concluded, somewhat disingenuously, that “if the Court has misperceived the political will, it has the assurance that because the question is statutory Congress may set a different course if it so chooses.”
But by 1987, Congress had not set a different course. The Santa Clara Court was quick to regard this as support for its interpretation of Title VII; “Congress has not amended the statute to reject our construction, nor have any such amendments ever been proposed, and we therefore may assume that our interpretation [in Weber] was correct.” Justice Stevens concurred in the majority opinion, despite his frank acknowledgment that “the only problem for me is whether to adhere to an authoritative construction of the Act that is at odds with my understanding of the actual intent of the authors of the legislation.” For Justice Stevens it was enough to rely on precedent. Justice O’Connor also concurred on the basis of stare decisis. Justice O’Connor pointed out that “[n]one of the parties in this case has suggested that we overrule Weber,” and that given Weber as a baseline, the Santa Clara affirmative action plan did not run afoul of Tide VII as interpreted by Weber.
Santa Clara is an interesting case because of how the majority used Weber to reach its result. The majority opinion justified its conclusion by Congressional inaction after Weber. And two concurring Justices, enough to swing the vote the other way, scrupulously avoided repeating a textual analysis by relying on Weber as precedent. Justice Stevens implied that Weber, in which he took no part, was wrongly decided. Justice O’Connor shifted the issue from a violation of Title VII to a violation of the Weber decision.
What, exactly, is the significance of Congressional inaction when the Court rewrites a statute to make it conform to its “underlying purposes”? A statute that is clear on its face but can be interpreted as incompatible with its supposed purpose or “spirit” may reflect very real competing concerns. There will often be several purposes underlying the movement of legislation from its inception to passage, and the purpose apparent to those who peruse the legislative history may depend upon the vehemence of the proponents of any given “purpose” for the bill or the frequency with which that position is asserted in debate. The attempt to discern the spirit or purpose is so often futile that it ought to be examined only when absolutely necessary.
More importantly, a more insidious use of judicial power may occur in exactly those situations where the statute is clear but where underlying tensions and competing interests in the legislative branch previously operated to inhibit the full exercise of legislative will. Title VII explicitly prohibited any and all discrimination. To be sure, some members of Congress would have liked to see Title VII embrace voluntary affirmative action even without a showing of past discrimination. Other members would have preferred not to face the issue at all. And, quite obviously, others sought to maintain the status quo ante. There is, in short, every reason to expect that statutes that address fundamental issues frequently represent the outer political limit of the legislative will.
What, then, of judicial interpretation that goes beyond that outer limit? If Congress could not resolve issues, beyond flatly prohibiting discrimination in the first instance, there is nothing to suggest that Congress could do it today. And this conclusion applies equally to Congressional ratification or disavowal of the Santa Clara/Weber decisions. Bland statements that Congress could have overruled Weber ignore this political dimension and are a poor source of authority for continuing this exercise of judicial power. In this instance, stare decisis is a fancy name for “bootstrapping.”
The real question, raised by the dissenting opinions of Justice Rehnquist in Weber and Justice Scalia in Santa Clara, was whether the text of the statute offered guidance to resolve the issues before the Supreme Court. Had that question been answered affirmatively, the Court would have been faced with the statute’s plain terms in prohibiting discrimination. That should have been the end of the inquiry.
To achieve by judicial fiat what could not be accomplished through the legislative process is not only a usurpation of legislative prerogative, it is also contrary to the nature of majority rule. However we may seek to protect a political minority from the potentially harsh imposition of majority will, these concerns are not implicated here. The composition of Congress, the checks and balances provided to the three branches of government, federalism, and the protection of individual liberties found in the Amendments all act to soften this result. Beyond that, majority rule governs. And it governs through the legislature, not the courts. Only when issues are debated in a forum with political accountability can we be sure of achieving majoritarian will.
The official majority will as of 1964 was expressed literally in Title VII. That is to say, the majority was willing to be fair and support some progress in the strides of minorities toward equal participation in the work force, but it was not willing to discriminate against itself to achieve that goal. The Weber and Santa Clara decisions do a disservice to both Congress and the electorate by depriving each of the impetus so often needed to accomplish the difficult task of passing legislation that addresses great issues. The result is that instead of Congress debating how and when we will redress discrimination in the work place, the implementation of affirmative action will be left by Congress to judicial resolution. Decisions like Weber and Santa Clara will, in the long run, allow Congress to shrink from tackling the really controversial issues. If even patently clear statutes can be rewritten, imagine what ambiguity can achieve.