Dean's Address

Legal realists generally claim Charles Evans Hughes as one of their own due to his often quoted comment that we are under a Constitution, but the Constitution is what the judges say it is. However, several years later when he became Chief justice he made it clear that by this he did not mean that precedent should be disregarded or that the justices should be permitted to create law as they saw fit, but rather that the Constitution cannot stand alone ‑ it requires interpretation and, thus, decision making.

Are not all decisions value‑based to some degree? Each of us brings to our decision making processes a perspective, a philosophy ‑ our own set of values which, regardless of our capacity to be objective and professional, shapes our analysis. Yet, "strict construction" allows us to believe that judicial decision‑making is somehow different. It is as if the act of taking the oath of office of the High Court imbues the justice, once a mere mortal, with the ability to impassively and brilliantly "divine" the law. The Constitution of the United States is a document couched in broad principles, it does not contain all of the answers. If it did, surely we would have outgrown it by now.

When one asks what the justices are to look to in order to glean this all important original intent, one is often directed to The Federalist Papers, which were written in 1788. However, one of the authors of that work, James Madison, let it be known that he did not believe he was writing a gospel to which all future jurists would refer. He wrote in essay no. 14:

Is it not the glory of the people of America that ... they have not suffered a blind veneration for antiquity to overrule the suggestion of their own good sense?

In light of this statement it seems ironic to look only to the Framers to solve the problems of today.

If I had to claim one of these theories, I guess I am more of a realist, but I am also an idealist. I believe that we must understand the text of the Constitution and the laws as well as the social and political back‑ground of the justices in order to fully appreciate how their decisions are made. I agree with justice Brennan when he said that the Administration's demand that the Justices discern exactly what the Framers thought about a question under consideration and simply follow that intention in resolving the case before them, is a view that feigns self‑effacing deference to the specific judgments of those who forged our original social compact. In truth, as he said, it is little more than arrogance cloaked as humility It is arrogant to pretend that from our vantage we can gauge accurately the intent of the Framers on application of principles to specific contemporary questions.⁸

As I said, however, I am also an idealist. I agree with Robert Bennett, the Dean of Northwestern University School of Law, when he said that he is optimistic, even exuberant, about the role that courts may play in bringing about social change, largely through constitutional interpretation. I,  too, believe that courts, and we as its officers, should strive to protect the fundamental values espoused in the Constitution.

In its broad attack on judicial activism, the Administration is attempting to curb the previously aggressive protection which individual rights received from the Supreme Court. The red flag of "judicial activism" is generally raised by this Administration whenever the Court uses its power of judicial review to strike down an act by the government and enforce fundamental rights. However, for the 183 years since Marbury v. Madison, judicial review and, thus, judicial activism, has been a fact of life.

More often than not, the term judicial activism has been used as a pejorative term. However, once it has been admitted that the justices may invalidate actions of the other branches of government, all complaints about judicial review seem self‑serving. Some said that the Warren Court was "dangerous" because it was judicially active. Now there are those who accuse the Burger Court of activism by its blunting or dismantling of many of the holdings of the Warren Court. What it all comes down to is "whose ox is being gored."

Edwin Meese and William Bradford Reynolds have been the most vocal opponents of so‑called judicial activism in the past several years. In a recent speech, Robert Bennett called the Administration's attack on judicial activism simplistic. Mr. Meese and Mr. Reynolds perceive an apparently precise benchmark for spotting inappropriate activism. To them it is anything beyond the jurisprudence of the original intention. The Attorney General encourages the current Court to go back to a time before the now famous footnote four of the 1938 Carolene Products ⁹ decision, in which the Court first noted that an active judicial role is justified when the Court is either protecting the rights of discreet and insular minorities or basic Constitutional values. For it was after this decision that the Court really set itself to the task of identifying which rights or values were so fundamental that they should be applicable to the states through the 14th Amendment and judicially enforced against the other branches of government. A prime target for attack by Mr. Meese has been this entire incorporation process. In fact, in a line that was omitted from a speech he gave last year, but came out in its published version, he said, "Nowhere else has the principle of federalism been dealt so politically inviolate and constitutionally suspect a blow as by the theory of incorporation."¹⁰

The fact that Mr. Meese and Mr. Reynolds, as well as many others in the Administration, hold these views is not something to be noted and then filed away as Reagan generation trivia. Its impact is already being felt and will continue to be felt at an increasing rate in the future. Senator Paul Simon, who heads the Democrats' judicial nomination screening effort, complained that the Reagan Administration has been systematically trying to pack the federal bench with staunch conservatives and has been making more idealogical nominations than any Administration since that of Franklin Delano Roosevelt. Grover Rees, a special assistant to Attorney General Meese, has responded to these complaints by saying that the Administration is selecting nominees according to his or her willingness to interpret the Constitution as the Founding Fathers; intended it to be understood, and not according to conservative political philosophy. As I have already pointed out, however, these may be one and the same.

The term "conservative political philosophy" raises an interesting question. Is the Burger Court really conservative? I am sure no one here has any doubts about the answer to that question, but let us really think about it. Webster's Dictionary defines conservative as "tending to preserve established traditions and to resist or oppose any changes" A conservative court would be one that is wedded to the doctrine of stare decisis. However, with this the Burger Court faces a particular dilemma because among the precedents of the court are the Warren Court decisions. No doubt there are those on the Court who find those decisions very hard to live with, but the balance between the conflicting idealogies on the current Supreme Court has prevented drastic changes. It seems to have settled into a fairly steady pattern of limiting, but not overruling, many of the major decisions of the Warren Court.

Even so, the Burger Court does have a definite philosophy, and, as justice Blackman has said, it is "moving to the right."¹¹ This is evidenced by decisions such as Grove City College,¹² in which the Supreme Court gave a very narrow reading to the prohibition against sex discrimination contained in Title IX of the Civil Rights Act of 1964. In this case the Court held that the receipt of federal educational grants by students at a private college cannot, by itself, serve as a basis for forcing that institution to comply with all of the provisions of Title IX. Unfortunately, this case has often been cited for the broad contention that the government cannot cut federal aid to a college because it practices sex discrimination. Shortly after this decision, William Bradford Reynolds said that the Court's restrictive interpretation would be applied to three other laws as well. They were Title VI of the Civil Rights Act of 1964, which prohibits racial discrimination by recipients of federal assistance; Section 504 of the Rehabilitation Act of 1973, which extends that same protection to the disabled; and the Age Discrimination Act of 1975, which protects the elderly. A recent joint report of the NAACP Legal Defense and Educational Fund and the American Civil Liberties Union complained of serious erosions in all of these areas.

Employment, the key to success ‑ family stability ‑ hope ‑ and most importantly, pride in self worth, have been addressed directly by Congress through the enactment of Title VII of the Civil Rights Act of 1964. This act grants equality of opportunity in employment, particularly in the public sector. The federal courts, in enforcing the provisions of Title VII, found egregious discriminatory practices being employed by many states and municipalities, north and south, east and west, and addressed the issue squarely with integrity. They then fashioned remedies, though sometimes unpopular, to redress the wrongs.

Almost with an unanimous voice citizens verbalize a disdain for discrimination, but many also feel that the courts have overreached in fashioning remedies which sound like quotas for future employment. The criticism, however, neglects the historical setting which caused Congress to act and created the facts upon which the courts have based their remedies.

Selection procedures were often employed which acted as a closed door to the public employment that is financed by all citizens. Medical examinations failed minorities at a disproportionate rate for such spurious reasons as "flat feet" or "heart murmur" Efficiency ratings also served to perpetuate past discriminatory practices. The court properly struck down these impediments to equality and fashioned appropriate remedies.

The current Administration is totally opposed to quotas and numerically or statistically based affirmative action. It would urge limiting the remedial power of the courts. This is being attempted through the Department of justice as well as through the power of judicial appointment. As employment is the key to liberty, this is an area to which we must pay particular attention. The way I see it, you can't have very much freedom without money.

A recent decision of the Supreme Court hailed by the Administration and intentionally misinterpreted by the justice Department is Firefighters Local No. 1784 v. Stotts.¹³ The Justice Department claims that this case drastically changed the state of the law and it has been citing it as justification for implementing an anti‑affirmative action philosophy.

The actual holding of this case was fairly narrow. It held that Title VII protects a bona fide seniority system and only permits an award of competitive seniority when the beneficiary of the award has actually been a victim of discrimination. The Justice Department has sought to expand this holding and claims that it implicitly overrules the legality of race‑conscious affirmative relief. It has filed suit in over 50 jurisdictions seeking to have locally implemented affirmative action plans declared unconstitutional, primarily on the basis of Stotts. Up until now, however, it has not been very successful. Virtually all the federal circuit courts that have considered the matter have refused to extend the holding of Stotts. These losses have not put a damper on the justice Department, however. It remains persistent in its attack on affirmative action.

The unequivocal position of the Administration is that Title VII proscribes all affirmative action plans that require employers to meet specific numerical goals and that injunctive decrees requiring such relief are invalid. The lower courts throughout the country have established remedial relief appropriately fashioned to address the proven discriminatory acts. In spite of the vigorous attack by the Justice Department upon the existing decrees in virtually every state, the district courts have, in almost an unanimous voice, denied all requests to modify existing orders. The Justice Department has not been selective in its attack, nor has it attempted to balance the equities. The message, however, from the courts is clear: relief in the form of numerical goals will continue as long as it is rationally based on the societal need to deal with past acts of discrimination and as long as it is directed against the appropriate defendants.

The issue is once again squarely before the Supreme Court in three cases which were argued earlier this year and are awaiting decision possibly to be announced before adjournment of the current term. One of these is Local 93, International Association of Firefighters v. City of Cleveland.¹⁴ There, the union sought to reverse an affirmative action plan requiring numerical goals for promotion of black firemen. Although this plan was the basis of a consent decree, the union claimed that it constituted reverse discrimination and was in violation of both Title VII and the Fourteenth Amendment. The justice Department actively supported the union in this contention through an amicus brief.

The second case before the Court is Local 28, Sheet Metal Workers v. EEOC¹⁵ in which the union asked the Supreme Court to reverse a court order requiring the union to remedy its pattern and practice of discrimination by meeting a 29% minority membership goal. The union admitted that for over two decades it has thwarted court‑ordered affirmative action plans. Now it claimed that the plans constituted reverse discrimination and that the remedy ordered by the Court was beyond its authority because it was a so‑called "quota."

The final case consolidated with the previous two for decision this summer is Wygant v. Jackson Board of Education.¹⁶ Here, a Michigan school board's voluntary affirmative action plan, as contained in their collective bargaining agreement, is at issue. The contention is that the plan violates the Equal Protection Clause of the Constitution because it limits minority lay‑offs where there is no direct finding of past discrimination against the individuals involved.

Solicitor General Fried exhibited his total lack of appreciation for the real matters at stake in these cases when he challenged the school board's affirmative action provisions in his Wygant brief. He compared the degrading effects on black workers to the lack of respect people would have shown for Hank Aaron if the fences had been moved in 10 feet so that he would have a better chance of breaking Babe Ruth's home run record.

Putting Charles Fried and his demeaning analogies aside, in my judgement  there are important and distinct factual circumstances differentiating these three cases. All challenge the authority of the courts to establish numerical relief to remedy discrimination and many have lumped the three cases together on this basis. However, in Sheet Metal Workers v. EEOC, the right of a district court to fashion a remedy in the face of a constitutional violation and after a lengthy hearing and finding of discrimination by the Court is at stake. I would seriously doubt that the Supreme Court will overturn the holding in this case, as that would involve circumscribing the powers of the lower court. Clearly in these cases a numerical remedy is not precluded.

In Firefighters v. Cleveland, the Supreme Court is faced with the possibility of reversing a consent decree that has gone through a thorough review. This is an extremely difficult area in which to predict a Supreme Court decision, but I believe the Court will give deference to the lower court's review of the facts. However, it may be a Bakke-type decision, recognizing that race‑conscious relief is possible, but limiting the application of that relief so that the ultimate goal is to have the percentages mirror those within the work force. In general, though, I think, that the Court is less likely to rule out numerical relief when it serves as a basis for a consent decree.

How the Wygant decision will come down is anybody's guess. I would only venture to say that the Court is more likely to overrule the numerical relief ordered in this case than in the previous cases, since the Wygant judgment was based on a purely voluntary affirmative action plan. The absence of lower court involvement in the plan here would make it easier for the Court to overturn it on review. We will all just have to wait and see.

Affirmative action remedies are an attempt to correct a system of degradation imposed by the many upon the few. Constitutional law commentator Kenneth Karst discusses this at length in his writings:

Inequality is harmful chiefly in its impact on the psyches of the disadvantaged .... In modern constitutional parlance, race is a suspect classification primarily because the dignity of being recognized as a person ‑a citizen ‑is itself a basic right, a "fundamental interest."

Furthermore, the dignity of citizenship is fundamental in the same way that the right to vote is fundamental: it is instrumental in the attainment of a wide range of other goods in an ‑achievement‑oriented society.¹⁷

These principles embody the value of respect for one's basic humanity, as well as the value of allowing each to participate as a member of the community. This is the philosophy that served as the basis for the constitutional right to vote as well as the Voting Rights Act.

The area of the law involving franchise rights demonstrates clearly the interplay between judicial decision, legislative action, and executive enforcement. The first major apportionment case was dismissed by the Supreme Court as involving an unjusticiable political question. justice Frankfurter strongly urged that the courts should not enter this "political thicket;' but enter it they did. During the years before the Voting Rights Act the Supreme Court upheld the right to vote by relying variously on the equal protection guarantees of the 14th Amendment, the right to vote under the 15th Amendment, and the command of Article 1, Section 2 that representatives be chosen "by the people of the several states" Congress, however, decided that a comprehensive attack on continuing voting discrimination was needed and so it passed the 1965 Voting Rights Act.

In the 1980 case of City of Mobile v. Bolden,¹⁸ the Supreme Court determined that plaintiffs had to prove actual and intentional discrimination in order to recover under the Voting Rights Act. The impact of Bolden on the enforcement of one of our most precious constitutional guarantees was unmistakable. After Bolden, the number of voting dilution cases dropped sharply. As in the days prior to the passage of the Voting Rights Act, a plaintiff's chances of prevailing were minimal in all but the most flagrant cases of discrimination.

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