First Among Equals (31 page)
To the chagrin of the business community, the Court in the spring of 2000 used Roger Reeves's case to enhance the chances of plaintiffs like him. Given the state of the evidence, a unanimous Court held, Reeves could properly win before a jury. In fact, he had done just that. The jury in Mississippi had listened to the evidence and ruled in his favor. But appellate courts across the country had been troubled by allowing cases like his too readily to “go to the jury.” So a number of courts had said, in effect, that more is required of the employee than establishing a prima facie case, coupled with sufficient evidence to disbelieve the employer's stated legitimate reason for its decision. Rather, the employee also has to come up with evidence of intentional discrimination.
In the
Reeves
case, the Supreme Court said this was unjustified. Speaking through Justice O'Connor, the Court unanimously concluded that once the employee had established his case under the burden-shifting rules, then the case could go to the jury, which could then find in favor of the employee. The lower courts had been requiring the employee to prove too much. After all, if the employee showed that the company's stated reason was untrue, then the jury should be able to
infer
that the company's real reason was a discriminatory one. As O'Connor put it: “In appropriate circumstances,
the [jury] can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose.”
Here, the Court simply made up the law of discrimination. It didn't apologize for it, nor criticize Congress for having left this exercise in “interstitial lawmaking” to the judiciary. This is an anomaly, asking courts, in effect, to fill in the blanks of what Congress had done. But as a practical matter, it is impossible for Congress to anticipate each and every aspect of a law. The best Congress can do at times is provide a basic set of policy choices, and a general framework within which specific cases can be resolved. It thus must fall to the judiciary to do the rest of the lawmaking. Our system of government has grown entirely comfortable with Congress passing a law and then anticipating, without saying so in the law itself, that the judiciary will take over and finish the legislation.
That unanimity can ever be achieved under these circumstances is remarkable. This is, after all, the judiciary doing what we understandably assume Congress will do. One would think that it's Congress that sets up the framework, and then the judiciary steps in to resolve the specifics of the individual cases within the framework that Congress has seen fit to establish. Little would we suspect that the judiciary would be in an informal joint venture— a joint construction contract—with Congress, with few rules to guide the courts in carrying out their part of the building project.
Not surprisingly, unanimity on the Court frequently breaks down here, as elsewhere. Not only is there a good deal of running room for judges, but no unifying principles, such as the equality principle, bind the justices together. They are, in this context, sailing in less charted waters. They are more like common-law judges, with the ebbs and flows that characterize the development of English and American law over the centuries.
The enduring point is that these now commonplace exercises in lawmaking reveal a Court engaged in “making the law”—indeed making it up. Congress does not mind, even if the law the Court makes is not what most members like. Only if Congress strongly disagrees does it write new law.
Statutory interpretation, then, is best understood as a matter of dialogue. It is a conversation between Congress and the courts. And the creativity required—and contemplated—in this exercise renders what many observers dismiss or ignore: one of the most lively areas of the Court's work, affecting the lives and liberties of the American people.
T
HE
R
EHNQUIST
C
OURT AND
THE
F
EDERAL
R
EPUBLIC
C
HRISTY
B
RZONKALA'S DAYS
as an undergraduate at Virginia Tech ended in 1994 when she said she had been raped in her dormitory by two varsity football players. Brzonkala sued her assailants under a federal law, the Violence Against Women Act (VAWA). Congress had passed the measure after no fewer than four years of hearings during which it assembled evidence pointing to, in the words of a Senate report, “a national tragedy played out every day in the lives of millions of American women at home, in the workplace, and on the street.” Not only was the human toll grave but the economic effects were hugely negative, among them foreclosed job and educational opportunities. VAWA created a new civil remedy for women like Christy Brzonkala—specifically, the right to sue perpetrators of violence for money damages.
Anyone knowing as little about Christy Brzonkala's lawsuit as I have just related might fairly wonder whether hers was really a “federal” case. After all, some matters, regardless of how pressing they might be, have long been considered “local” in nature. States and subordinate units of government—counties and cities—handle local matters. To cite an obvious example: The states, not the federal government, address the myriad questions involving marriage, divorce, and child custody. Is violence against women a matter for the states, or may Congress also deal with it?
These are questions of federalism, one of structure under the Constitution. What is the constitutional distribution of power between the federal government and the states? The Constitution does not confer on Congress a general power to address every issue it wants to. Instead, the Constitution specifies the powers it gives to Congress.
This isn't an accidental feature. When the framers met in Philadelphia in 1787, they intended to create a national government of limited powers. The framers began Article I—on Congress—this way: “All legislative Powers herein granted shall be vested in a Congress of the United States.” The framers then spelled out those legislative powers. Their understanding was that Congress had only those powers (and any others the people might grant it through constitutional amendments). For the framers, the “enumerated powers,” as they called them, and what may reasonably be implied to be within those powers and those “necessary and proper” to carry out the enumerated powers, were the sum of it. Powers that were not enumerated, they also agreed, belonged to the states and ultimately the people.
James Madison, rightly regarded as the Father of the Constitution, summarized what it meant to enumerate powers. During the Constitutional Convention he wrote: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” In 1791, the Tenth Amendment was added to the Constitution. It stated what everyone in Philadelphia had assumed to be the case: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
“Enumerated powers” and the Tenth Amendment are key elements of federalism. Federalism, as Madison's statement shows, concerns the division or distribution of power between the federal government and the states. Madison thought that dividing power between two sovereigns would be better than having just one, because the one would help limit the other. This way, liberty, the ultimate end of the Constitution, would have what Madison called a “double security.” This is at the core of the Constitution's genius: The existence of two governments would better promote liberty than would a single unit.
Many provisions of the original Constitution were written with federalism concerns in mind. So were many of the twenty-seven amendments added over the following two centuries. Indeed, federalism runs through the entire document, in words but also in theory. Like separation of powers, it is a basic structural principle.
Christy Brzonkala's lawsuit provoked a debate over this principle. The debate wasn't about the merits of her claim but about the constitutionality of the new federal law she used to state her claim. Congress had never seen fit to pass a general assault statute applicable anywhere and everywhere in the country. Assault had been a matter for the states to deal with, in such laws as they might frame and direct prosecutors to enforce. Thus the question: What authority did Congress have to enact the Violence Against Women Act?
Congress answered that question when it passed the law in 1994. In its view, Congress was acting on the basis of its Article I power to regulate interstate commerce (the Commerce Clause) and its power under section 5 of the Fourteenth Amendment to enforce civil rights.
But the Supreme Court, by a vote of 5–4, held in 2000 that Congress lacked authority to create a federal cause of action for victims of gender-animated bias. The Court, in an opinion authored by Chief Justice Rehnquist, said that violence against women, however serious a social problem it might be, was not interstate commerce, and thus was not a matter Congress could regulate in this manner.
Christy Brzonkala's case is one in a series of federalism decisions in which the Rehnquist Court has sided against Congress. The nature of the issue in these cases has varied, as have the constitutional bases for the Court's decisions. The Court has discerned and enforced limits on federal power under the Commerce Clause and under section 5 of the Fourteenth Amendment. It has also enforced the prerogatives of the states provided by the Tenth and Eleventh Amendments.
To repeat: All of these cases are federalism cases, and in them the Court has found laws of Congress unconstitutional. But these are not the only cases the Court has decided that affect federalism. Civil liberties and civil rights cases involving a state law or action also have consequences for federalism. Consider that whenever the Court holds, for example, that the law of a state violates the First Amendment, it denies that state the power to have that law—that is, to govern itself in a particular way. Recall the 1989 flag-burning case from Texas. At issue was whether a Texas statute outlawing flag desecration violated the First Amendment. The Court by a vote of 5–4 said the law was unconstitutional. The law thus could have no more effect. Today, however much the Texas legislature might want to regulate what someone might do to the American flag, it can't pass a law that denies the right to burn it.
During the same term the Court decided Christy Brzonkala's case, it also ruled—as it usually does every term—in a series of cases involving disputes over civil liberties and civil rights arising from the states. And, as typically happens each term, many of these cases went against the states. State laws were found invalid under the First, Sixth, Fourteenth, and Fifteenth Amendments.
Cases like these are not the ones people have in mind, however, when they talk about the Rehnquist Court's federalism cases. Cases like these are not the controversial ones, at least from a federalism perspective. The cases concerning federalism that have deeply divided the Court and that have provoked debate in law review articles and on the nation's op-ed pages are those, like Brzonkala's, in which the Court has found that Congress lacked constitutional authority to pass a law or that a law of Congress unconstitutionally invaded state prerogatives.
These cases deserve a closer look. Their importance derives from the fact that in these cases the Court is making what might be called structural repairs to our constitutional system. Here, though, it is worth pausing to clarify the meaning of federalism. Say the word and many people immediately will think of “states' rights” and conjure up the image of Alabama Governor George Wallace invoking those rights in his effort to block the admission of black students to the University of Alabama. The states, of course, are not free anymore to discriminate on grounds of race. That is good for federalism, for now it is possible to consider the role of the states in our constitutional system without having to see the matter through a racial lens. Significantly, not one of the Court's recent federalism cases has involved race.
During my service as solicitor general, I saw another version of “states' rights” that can also be distinguished from true federalism. This version of states' rights was at the heart of a case I argued in 1989. In the 1980s the nation debated what our foreign policy should be toward Central America. Several governors, including Michael Dukakis of Massachusetts and Rudy Perpich of Minnesota, ordered the National Guard units within their states not to participate in military training exercises in Honduras. The governors had taken this action as a way of expressing their disapproval of U.S. aid to rebel forces in Nicaragua. Congress passed a law to prevent these states from conducting their own foreign policies. The governors challenged the law and lost. The Rehnquist Court's decision in
Perpich v. Department of Defense
(1990) recognized that under the Constitution the federal government, not the states, has the authority to conduct foreign affairs. This was an entirely sensible resolution, vindicating national power over that of the states.
Just as federalism need not be a mask for racism (or any other kind of oppression), it should not be identified with state efforts to assume obviously federal tasks, such as running U.S. foreign policy. Federalism, properly understood, is an essential part of our constitutional system. And the proper way to understand federalism is in Madisonian terms—as the division of power between the national government and the states so that there is a “double security” for liberty.
A major federalism challenge facing Madison and his colleagues at the founding lay in the fact that the states were islands of stubborn economic protectionism. No small part of the original constitutional design was to obliterate parochialism in matters of trade and commerce and create a vast common market of the states. Indeed, the Commerce Clause, which was at issue in the
Brzonkala
case, was framed with precisely this goal in mind, for economic liberty would be in jeopardy if the states were able, without limitation, to regulate commercial activities involving several states.
