A court that obeys the law - recent Supreme Court decisions

National Review, Sept 29, 1989 by Bruce Fein

The Supreme Court did not slow its activist march with the retirement of Earl It continued to invent legal and constitutuional outrages through the 1970s. But in 1989 the Rebnquist Court act ally read the laws it interpreted.

The 1988-1989 term of the United States Supreme

Court witnessed the most dramatic single-year change in constitutional and statutory interpretive principles since the birth of the Court two centuries ago.

The Court made the express language and purpose of the Constitution and laws once again the touchstone for adjudication. Over the previous four decades, the Court had increasingly employed the "spirit" of a statute, or ambiguous snippets of legislative history, or the Justices' idiosyneratic notions of wise or compassionate public policy to inform the judicial task of interpretation. But in the term just ended, the Court jettisoned the longstanding practice of straining, contorting, or bending the Constitution or a law to favor claims advanced by racial groups that were believed helpless in legislative chambers or subject to substantial social hostility. The Court additionally clipped the practice of stretching laws designed to correct wrongdoing so as to ensure that an injured party could obtain money from the government.

In short, a five-member working majority of the Court-Chief Justice Rehnquist and Associate Justices White, O'Connor, Scalia, and Kennedy-have embraced judicial humility, a trust in the fairness of the legislative process, and a color-blind Constitution as fundamental precepts of constitutional or statutory construction.

One of the Court's most important changes-though it may seem a mere technicality-was to insist on examining the text of a statute under consideration, rather than its legislative history. For many years the Court had accepted the idea that the text and manifest purpose of a law could be disregarded if the result would seem discordant with a presumed unidimensional policy of Congress. As legislators, in turn, began noticing what the Court was doing, they came up with a neat trick for creating new public

policy without a majority vote. The typical legerdemain consisted of planting obscure footnotes or sentences in committee reports, or of orchestrating legislative debates when few were in attendance, so as to invite judges to interpret a law as if those communications had made their way into its text. But statutes are invariably the result of compromise, reflecting tensions between competing political forces. The Court and its legislative accomplices were thus betraying political reality by straying beyond a statute's language to achieve policy coherence.

Three civil-rights cases in recent years exemplified this tendency. In Griggs v. Duke Power (1971), the Court examined the prohibition in Title VII of the 1964 Civil Rights Act against classifying or limiting employment opportunities "because" of an individual's race. The Court interpreted that language as prohibiting a high-school-diploma requirement for specified jobs because a greater percentage of blacks lacked that qualification than whites. But a practice that may adversely affect a racial group statistically does not constitute individual discrimination "because of race." Thus, a grocery store charging a uniform price for light bulbs is not guilty of racial discrimination simply because the cost places financial strain on a greater percentage of blacks than whites. The Supreme Court, however, condemned the comparable impact of the high-school diploma.

In Steelworkers v. Weber (1979), the Court addressed the meaning of "race" in the 1964 Civil Rights Act. In ordinary parlance, the term includes whites as well as blacks, Hispanics, Indians, Asians, and other distinctive racial groups. Congress did not specifically define the term in a narrower sense. The Court, nonetheless, interpreted Title VII to authorize racial discrimination against white employees if black employees were the beneficiaries. The Court reached that countertextual conclusion by inventively discovering a "spirit" of the law that smiled on efforts that would bring blacks into the economic mainstream. But not a syllable spoken or written by

members of Congress suggested a consensus that white employees could be the targets of racial discrimination in order to crown black employees with racial preferences.

The Court performed a comparable feat of verbal acrobatics in Johnson v. Transportation District of Santa Clara (1987). There, a statutory ban on gender discrimination in employment was interpreted to mean that discrimination was lawful if directed at white males to benefit less-qualified females.

What type of judicial nonsense and unfairness ended this term. Thus, in Patterson v. McLean Credit Union, the Court refused to apply an 1866 civilrights statute guaranteeing nondiscrimination in the making and enforcement of contracts to reach on-the-job racial harassment. That conduct was contemptible, the Court stated, but was unrelated to making or enforcing contracts. An amendment from Congress was needed, the Court maintained, to make the 1866 statute reach racial harassment (already illegal under Title VII of the 1964 Civil Rights Act).