Statutes and democratic self-authorship.

• Author: Kahn, Paul W.
• Position: III. Self-Authorship and Statutory Construction through Conclusion, with footnotes, p. 145-179

3. Self-Authorship and Statutory Construction

   We argue that democratic self-authorship grounds the best normative theory of statutory construction--a claim explored philosophically in Part IV. But democratic self-authorship is more than a normative theory. We offer it as a theory of existing practices of statutory construction. To qualify as a theory of our practices, there must exist, in Dworkin's terms, "fit" between what the theory demands and what courts are actually doing. (123) Accordingly, before we elaborate the normative theory of democratic self-authorship, we take up the inquiry into fit. In this Part, we maintain that judges have been guided by an intuitive sense that the rule of law and the rule of the people are one and the same. Of course, the fit is not perfect, for judges have also labored under a fear that they will be accused of usurpation of the legislative role. The fit is, however, closer than one might have expected. Indeed, if the ambition of the judicial practice is really to discern the authorial intent of the legislature, democratic self-authorship can explain many aspects of statutory construction that appear puzzling.

   1. "Super" Statutes

      Recently, considerable scholarly attention has focused on what Bill Eskridge and John Ferejohn call "super-statutes": statutes so deeply "entrenched" in our legal order that they operate almost like constitutional provisions. (124) Examples include Title VII of the Civil Rights Act of 1964, (125) the Sherman Antitrust Act, (126) and the Endangered Species Act. (127) Not surprisingly, judicial construction of these statutes does not focus on locating legislative intent in the technical sense that we saw in Ali u. Federal Bureau of Prisons. (128) Instead, courts focus on broader public values. Courts are not answering the question of what a particular legislative body at a particular moment did. They are answering the question of what it is we are doing.

      Consider Ricci v. Destefano, a recent Title VII case that considered whether employers may adopt race-conscious policies in order to ensure compliance with Title VII's antidiscrimination regime. (129) The City of New Haven, looking to make promotions within the fire department, administered a lieutenant's exam that yielded demographically skewed results. In the aggregate, white firefighters performed much better than black firefighters, and of the top fifteen candidates--the group slated for promotion--all but one was white. (130) Fearing that certification of the exam results would invite a Title VII disparate impact suit, the City Service Board of New Haven voted to administer a new exam. (131) This brought a Title VII suit from white firefighters, who claimed that the decision not to certify the examination results amounted to an impermissible use of race in an employment decision. (132) In other words, Ricci "sets at odds [the] core directives" of Title VII (133)--subsection (k) requires employers to avoid employment policies that yield a "disparate impact" along racial lines, whereas sub-section (a) forbids employers from engaging in "disparate treatment" along racial lines. (134)

      Formally, Ricci raised an issue of statutory interpretation. Yet no member of the Court found the text of Title VII, the statute's legislative history, or even inquiry into Congress's larger "purpose," to be of much help. (135) Indeed, however fierce their other disagreements, all nine Justices seemed to concur as to the meaning of the text and the purpose behind it: the aim of Title VII is to end racial discrimination in the workplace. (136) The question is how. It is the same question, as Kennedy noted, that has beset the Court's constitutional jurisprudence for many decades. (137) It is the question of whether our commitment to racial equality entails color-blindness or color-consciousness. To tackle this difficult question, the opinions in Ricci placed these competing principles within broader narratives both of a national problem, and of the national effort to address that problem. (138) Their disagreement was over which narrative offers the most persuasive account.

      Writing for the Court, Justice Kennedy invoked a narrative of compromise: as a nation, we live by principles, but we also recognize the value of well-functioning institutions and the need to respect the expectations those institutions create. (139) To his mind, the petitioners' position--that Title VII proscribes all race-conscious employment decisions--and the respondents' position--that Title VII allows for race-conscious employment decisions as long as employers have a "good faith belief' that compliance requires them--were both too strong. (140) Instead, the right construction would assure "all groups ... a fair opportunity [to obtain] promotions," but also recognize the "legitimate expectation" that employees have "not to be judged on the basis of race," and to have the parameters of the established "selection criteria" respected. (141) In other words, employers need latitude to ensure that minorities have the chance to rise up the ranks, but employees are also entitled to a stable promotional process. The national commitment is to fairness, which requires acknowledgement of both principles while working out retail solutions in particular circumstances.

      In his concurrence, Justice Alito advanced a different narrative, individual merit. Alito focused on the firefighters passed over by the city's decision. (142) Emphasizing that all they sought was "a fair chance to move up the ranks in their chosen profession," Alito lamented the "personal sacrifices" the plaintiffs made. (143) Two stories were especially poignant to Alito. Frank Ricci, who suffered from dyslexia, "studied an average of eight to thirteen hours a day ... even listening to audio tapes while driving his car." (144) Benjamin Vargas, a Hispanic, had to "give up a part-time job, and his wife had to take leave from her own job in order to take care of their three young children while Vargas studied." (145) By treating Ricci's and Vargas's plights as equivalent, Alito implicitly disclaimed the notion that his construction of Title VII is about helping whites succeed; it is, instead, about ensuring that everyone, no matter their race, enjoys "evenhanded enforcement of the law." (146)

      Alito also dedicated significant energy to insinuating that New Haven's stated reason for throwing out the exam--to avoid disparate impact liability--was "a pretext," and that "the City's real reason was [an] illegitimate ... desire to placate a politically important racial constituency." (147) In Alito's view, the record contains evidence from which "a jury could rationally infer that city officials worked behind the scenes to sabotage the promotional examinations because they knew that, were the exams certified, the Mayor would incur the wrath of ... influential leaders of New Haven's African-American community." (148) Whatever one might think of disparate impact tests generally, redistribution of public resources to a powerful, local interest group cannot fit within a narrative of the people's purpose in authoring the statute. That is not why we passed Title VII. (149)

      In her dissent, Justice Ginsburg offered still another narrative: undoing racial subordination. (150) She opened by observing that "[i]n assessing claims of race discrimination, context matters." (151) Although Ginsburg acknowledged that plaintiffs like Ricci and Vargas "understandably attract ... sympathy," their individual plights cannot transform the institutional reality in New Haven. (152) African Americans and Hispanics, who account for nearly 60 percent of the population, "[are being] served--as it was in the days of undisguised discrimination--by a fire department in which members of racial and ethnic minorities are rarely seen in command positions." (153) New Haven should have an opportunity to rectify this situation. Whether, and how, Title VII should limit the means by which the city may do so is a question that must be framed in terms of the history of Title VII's reception. After Title VII went into effect, "[e]mployers responded to the law by eliminating rules and practices that explicitly barred racial minorities from 'white' jobs." (154) Yet "removing overtly race-based job classifications did not usher in genuinely equal opportunity." (155) Rather, "[m]ore subtle--and sometimes unconscious--forms of discrimination replaced once undisguised restrictions." (156)

      Ginsburg found the majority's identification of "intra-statutory discord" baffling. (157) In her view, the disparate impact provision and the disparate treatment provision of Title VII both pursue the same goal: dismantling racial hierarchy. New Haven's actions simply "do[] not present ... race-based discrimination" of the sort that Title VII targeted. (158) In contrast to Kennedy's insistence on pragmatic balancing, and Alito's defense of color-blindness, Ginsburg told a story of historical redemption. We have not yet recovered from the sordid legacy of slavery and Jim Crow racism. To interpret the disparate-treatment provision and disparate-impact provision as "discordant]" (159) rather than "complementary" (160) would be to frustrate the very goal codified by Title VII, and expounded in Griggs: the promise "that groups long denied equal opportunity would not be held back by [practices] fair in form, but discriminatory in operation." (161)

      The dispute among the Justices is not over the statute's text. Nor is it over legislative intent. Rather, each opinion takes the judicial role to be that of persuading us to read the statute as a part of a larger national narrative. Each opinion offers a distinct account of what we are trying to do in addressing our history of racial injustice. We are all able to recognize each account, even if we disagree with it.

      None of the opinions approach Title VII as if it were the outcome of a conflict of interest among...