When Steelworkers v. Weber began its way through the federal courts in 1976, it was widely thought that the case would prove an even more important challenge to affirmative action programs than the famous Bakke case. Bakke tested affirmative action programs in universities and professional schools. But Weber tested the legality of programs giving blacks advantages in training programs for industry, programs that would benefit more blacks directly, and might be expected to have an earlier impact on economic racial inequality.
Blacks were seriously underrepresented in the work force of the Kaiser Aluminum Company’s plant in Gramercy, Louisiana, where Brian Weber, a white laborer, was employed. Blacks held hardly any of the plant’s craft or skilled jobs. Kaiser agreed with its union to establish a training program for craft jobs, to which current employees would be admitted in order of seniority, that is, in the order in which they had entered the plant—except that one black employee would be admitted for each white employee until the number of blacks in skilled jobs formed the same proportion of all skilled workers as blacks formed of the labor force in the Gramercy area.
Weber applied for the program but was insufficiently senior to obtain a “white” place, though he was more senior than applicants who received “black” places. He sued Kaiser, arguing that the program used a racial quota system and so was illegal under the Civil Rights Act of 1964, which provides in Section 703(a) of Title VII that it is unlawful for an employer:
1) to fail or refuse to hire or discharge any individual or otherwise 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 or applicants for employment in any way which would deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.
Five justices—Justices Brennan, Marshall, White, Stewart, and Blackmun—held that Weber was wrong, and that this statute did not outlaw the Kaiser plan. They said that Congress did not intend to outlaw affirmative action plans of this sort, and that if a court interpreted the statute as Weber wished the statute’s “purpose” would be frustrated. Chief Justice Burger and Justice Rehnquist dissented. The two other justices—Justices Powell and Stevens—took no part in the case.
In the Bakke case Justice Powell had held that the admissions program of the Davis medical school was unconstitutional because it set aside a fixed number of places for minority applicants. The Kaiser training plan also set aside a fixed number of places for blacks, but it could not be said to be unconstitutional. The Equal Protection Clause of the Constitution requires states (and therefore state university professional schools) to treat people as equals, but imposes no such requirement on private institutions, unless “state action” is involved in what these private institutions do. The Court assumed that the voluntary decision of Kaiser did not constitute state action, and that the case therefore did not present any constitutional issue. The question raised in Weber, therefore, was only the question whether the Kaiser plan was made illegal by the Civil Rights Act.
That might seem a less important question than the question whether the plan is constitutional. If Congress disapproves a court decision interpreting a congressional statute, it can always reverse the decision by changing the statute. It cannot reverse a decision that interprets the Constitution. In the present circumstances, however, a Supreme Court decision on the statutory legality of affirmative action programs is, as a practical matter, almost as irreversible as a decision on their constitutional validity. It seems unlikely that Congress would now pass legislation either explicitly condoning or explicitly forbidding affirmative action in employment, at least so long as that issue remains politically as volatile as it is now. So the Court’s decision about the legal consequences of what Congress has already done is likely to remain in force for some time, whatever that decision is.
Weber was not a simple case to decide. The Civil Rights Act is explicit, in Section 703(j), that the government may not order private institutions to adopt affirmative action plans. But Kaiser’s program was not ordered by the Justice Department or any other government agency; it was agreed between the company and the union. The case would have been easier if Kaiser had admitted that it had discriminated against blacks in the past. If it had said that its previous hiring policies had been in some way discriminatory, so as to violate Title VII, and if that had been proved, then its affirmative action program would have been justified as a self-imposed remedy of the sort that a court might have ordered. The trial judge said that it was “arguable” that Kaiser had violated Title VII in the past. But Kaiser certainly did not concede that it had—that admission would have opened it to a large number of private suits by blacks. And no other private party to the suit had any interest in even raising the issue.
Burger and Rehnquist thought that the language of 703(a) of Title VII was so precise and unambiguous that there was no need for the Court to do more than read the statute. Burger said that if he had been in Congress in 1964 he would have voted against outlawing plans like Kaiser’s, but he thought there could be no doubt that the words of the section quoted above did just that. That view of the statute is unpersuasive. Against the background of centuries of malign racial discrimination, phrases like “discriminate against someone because of race” or “deprive someone of an opportunity because of race” may be used in a neutral (or, as Brennan put it in his opinion, in a “literal”) sense so that any racial classification whatsoever is included. Or they may be used (and I think typically are used) in an evaluative way, to mark off racial classifications that are invidious, because they reflect a desire to put one race at a disadvantage against another, or arbitrary, because they serve no legitimate purpose, or reflect favoritism, because they treat members of one race with more concern than members of another. In the former sense, choosing a black actor over a white one to play Othello or instituting an affirmative action plan to help establish genuine racial equality both count as discrimination against whites and depriving whites of opportunities because of race. But in the latter, evaluative, sense neither does. It is a difficult question which sense to assign to Title VII.
Of course, in either sense, the provisions of Title VII would apply to racial discrimination against whites as well as against blacks. In an earlier case, McDonald v. Santa Fe Trail Transportation Co., the Supreme Court held that it was illegal for a truck company arbitrarily to fire a white employee when black employees guilty of the same offense were retained. That was as explicit a case of favoritism—as unrelated to any legitimate established program of affirmative action—as the reverse would have been. But in that case the Court explicitly and carefully left open the question whether the statute outlawed affirmative action programs “which do not involve discrimination against any race, white or black, but are rather designed to compensate for the past racial discrimination.”
Weber required the Court to decide the question it had left open in McDonald. If it were clear that “discriminate…because of…race” was used in the neutral sense, it would have made no sense for the Court to leave open the question of whether it applied to affirmative action. The majority in Weber was right, both as a matter of ordinary language and precedent: the question of how Title VII should be interpreted cannot be answered simply by staring at the words Congress used.
This is obviously a question of cardinal importance. The majority and dissenting opinions describe two very different conceptions of the Civil Rights Act, and it is important to decide which version is part of the law of the United States. According to Brennan, who wrote for the majority, the act represents a decision by Congress to advance racial equality in education, employment, and other areas, and to end an economic era in which those blacks not wholly unemployed are largely restricted to lower paying and less interesting jobs. It would therefore be inconsistent with the underlying policy of the act to construe it to forbid voluntary industrial plans aimed at these goals.
Rehnquist disagrees, savagely. He said that the majority acted like the tyranny of Orwell’s 1984, reaching the conclusion it wanted in an intellectually dishonest way in spite of what Rehnquist considered devastating and conclusive arguments to the contrary. According to Rehnquist, the act embodies a conception of equality that prohibits any distinctions based on race whatsoever, so that the decision of the majority, far from promoting the policy of the act, “introduces into Title VII a tolerance for the very evil that the law was intended to eradicate….” If Rehnquist is right, then the Weber decision, though much celebrated by civil rights groups now, may well be limited sharply or even overruled by related cases in the future.
The two opinions—majority and dissenting—take competing positions on the question of what procedures the Court should use to interpret an act of Congress, and we cannot understand or evaluate these opinions without discussing that jurisprudential question. It is necessary, first, to distinguish between a statute, which is a canonical set of sentences enacted by Congress, and the legislation created by that statue, that is, the set of legal rights, duties, powers, permissions, or prohibitions the statute brings into existence or confirms. In the United States (as in every mature legal system) there are strict and precise rules, agreed on by everyone, that determine what counts as the statute. It is the set of sentences before Congress when it votes, as certified by a clerk, and thereafter signed by the president. But it is highly controversial what principles fix the legislation that a particular statute creates. When two conditions are met—when the words in the statute unambiguously require a certain decision about legal rights and duties, and when that decision is sensibly related to some widely supported political aim—then it is uncontroversial that the legislation includes that decision, and judges are bound to enforce it, whether they themselves approve it or not, unless they believe it unconstitutional.
When either of these conditions fails—when, for example, the words used might be used to express either of two decisions—then an argument must be provided establishing which decision, if either, does form part of the legislation. Any such argument will assume what might be called a theory of legislation, that is, a theory of how to determine which legal rights and duties Congress has established when it enacts a particular set of sentences.
There is no agreement about theories of legislation among American judges, or indeed among judges of any developed legal system. On the contrary, the concept of legislation figures in jurisprudence as what philosophers call a “contested” concept. Theories of legislation are not themselves set out in statutes or even fixed by judicial precedent; each judge must himself apply a theory whose authority, for him as for others, lies in its persuasive force.
Rehnquist’s dissenting opinion has the virtue of setting out his own theory of legislation in a reasonably clear way. “Our task in this case, like any other case involving the construction of a statute,” he said, “is to give effect to the intent of Congress. To divine that intent, we traditionally look first to the words of the statute and, if they are unclear, then to the statute’s legislative history.” (Lawyers use the phrase “legislative history” to refer to the records of congressional consideration of a bill that ultimately becomes a statute, including committee reports and debates on the floor.) Rehnquist believes that, on this theory of legislation, which takes legislation to be fixed only by what he calls the “intent” of the legislature, plans like the Kaiser plan are plainly outlawed. His contempt for the majority opinion shows that he thinks that this theory of legislation is not simply the best theory, but the only conceivable theory, so that the majority was not only wrong but intellectually dishonest in applying, as it did, a different theory.
It is true that Rehnquist’s intent-of-Congress theory is a popular one. It has two apparent and related advantages. First, it seems to enforce the general principles of democracy: since the legislature is entrusted with making law, the legislature should be taken to have done what it intended to do, at least if the words it used are capable of bearing that interpretation. Second, it seems to make the Court’s decision a politically neutral decision: the Court is supposed to answer a historical question—what did the legislature intend the statute to do—rather than to make its own political judgment. In fact, however, both appeals are in large part illusory, and the theory of legislative intent turns out to be, on examination, much less useful than it seems.
The theory seems useful only because it exploits an ambiguity in the idea of a legislative intention. There are in fact two different concepts described by that phrase, though legal scholarship and practice has not sufficiently attended to the difference. The first is the idea of an institutionalized intention, a policy or principle, or some set of these, that is in some way enacted so that it becomes part of the legislation by express legislative decision. Statutes sometimes contain explicit declarations of purpose, set out in what are called “preambles,” though this was once more common in the United States than it is now. If the Civil Rights Act had contained a preamble, reciting that its intention was to ensure that no person gained any advantage by any racial classification whatsoever, that understanding would thereby have been made part of the legislation and the rules described by the rest of the statute would have been properly interpreted only in that light.
Though preambles are now rare, convention has established other methods through which purposes are enacted as part of statutes. The most commonly used, I think, is the method of committee report: if the appropriate committee of Congress has considered a bill, and published an extended report recommending it, then convention now treats any understanding of what that bill will accomplish that is set out in that report as if the understanding were attached to the statute. If the bill is enacted, that statement is understood to be enacted as well, as an institutionalized account of its purpose.
It is, of course, only through convention that this association of a committee report with a statute is achieved, and it is only through that convention that the association is justified. Since members of Congress understand the convention, and have the committee report before them as a part of the institutional material on which they vote, it is fair to take any statement in the report as part of what they vote to enact, unless, of course, as sometimes happens, the statute is deliberately amended in order to override some statement of the report.
Preambles and committee reports do not exhaust the mechanisms of institutionalized intention. Such intentions may also be created by statements of congressmen on the floor in debate over the bill, though the details of this convention cannot be stated so crisply. If a prominent spokesman for a bill proposes a general understanding about what the bill will do, and if this is accepted by other congressmen as a kind of official clarification or informal amendment, then his statement will have that force, and it is now common for courts to attend to such statements. But the qualification—that the statement must be accepted as understood to form part of the statute—is essential. If even a leading spokesman’s statement of what the bill will do is contradicted by other legislators, then that statement becomes simply a report of his own belief, different from theirs, of how the statute should or will be interpreted by agencies and courts, not an institutionalized intention at all.
This first concept of legislative intention—the concept of institutionalized intention—is in no sense a psychological concept. A preamble, or an explicit statement in a committee report, or an uncontradicted proposed understanding is taken to be part of what is enacted, not because of any assumption about the hopes or motives or beliefs or other mental state of any particular congressman, but because the convention that attaches the statement to the statute is now part of the institution of legislation in the United States. The convention has the same logical standing (though of course it is neither so explicit nor so secure) as the fixed constitutional rules that provide for the form in which a statute must be enacted.
The concept of institutionalized intention must therefore be sharply distinguished from the second concept of legislative intent, which I shall call the concept of collective understanding, and which is distinctly a psychological concept. This second concept takes a legislative intention to be some combination—which combination is a matter of dispute—of the beliefs of particular congressmen who draft, advocate, oppose, lobby for or against, and vote to pass or reject a particular statute. Of course the senators or representatives who are in this way part of the legislative process, and their staffs, and other government agencies or personnel, do act on the basis of some beliefs about what legislation the statute will in fact enact. A congressman may have voted for the Civil Rights Act, for example, precisely because he thought that it would prohibit affirmative action programs of a certain type; another may have voted for it only because he thought it would not. This psychological concept of legislative intention supposes that some combination or function of these individual beliefs constitutes the collective understanding of the institution as a whole, so that, if for example, that combination existed in favor of the understanding that affirmative action was outlawed, then this was the intention of the legislature itself.
Of course, this concept of legislative intention is useless unless the combination of individual understandings necessary to constitute the collective intention is at least roughly specified. Lawyers who seem to rely on this concept of legislative intention are rarely explicit on this matter and assume that the necessary combination can be formed in different ways. If the theory of legislative intent is to remain faithful to democratic principles, however, a minimum requirement must be met: a sufficient number of those who voted for a statute must have an understanding in common, so that that number alone could have passed the statute even if everyone else—all those who did not share that understanding—had voted against.
The idea of a collective legislative understanding is therefore of limited use. Some of its limitations have been noticed often in the extensive legal literature on statutory interpretation. Lawyers know, for example, that it is very difficult for a court to discover, years after the event, what understanding any particular legislator had, and therefore difficult to know what the composite understanding was. This is an epistemological difficulty that Rehnquist himself concedes, because he acknowledges that in some cases it may be difficult to say what the legislature’s intention was, though he thinks that this is not so in the case of the Civil Rights Act.
There are other, less familiar, difficulties with the idea. Let us assume, for a moment, that every congressman who voted on the Civil Rights Act had some belief about whether that statute would ban affirmative action. Suppose that of one hundred senators sixty voted for the act but only forty-nine of these believed it would outlaw plans like Kaiser’s. In that case, there could be no collective understanding either way, even if all those who voted against the act also had the same belief, making a total of eighty-nine who held it. And in fact the assumption we have made is almost always unjustified. It is wrong to assume that every legislator who votes on a bill has an understanding one way or the other about every consequence that bill might have. It seems quite likely, for example, that some of the senators and representatives who voted on the Civil Rights Act gave no attention at all to the problem of whether the act would forbid voluntary programs like Kaiser’s. It seems equally likely that many of those who did consider this were genuinely uncertain whether the act would, and either had no motive for attempting to clarify the matter or a strong motive for not doing so. If a significant number of congressmen had no firm understanding either way, or if the majority that passed the statute was divided in its opinion, then once again the collective understanding is not simply difficult to discover. It does not exist.
Even when a sufficient number of congressmen do share a belief about what a statute will do, moreover, that agreement might not constitute a collective understanding of the sort that a court should enforce. For we must be careful to distinguish among different sorts of belief a congressman might have about a vague or uncertain provision in a statute on which he must vote. He might assume that the language of the provision itself does determine some controversial issue, or that some preamble or unchallenged statement constitutes an institutionalized intention one way or the other. If the text is genuinely unclear, however, and if there has been no statement forming an institutionalized intention, he is more likely to think that the text of the statute leaves the issue open as an issue of interpretation for the courts to decide.
In that case any belief he might hold or express about the consequences of the statute would be a matter of predicting the decision the courts will reach. The decision he predicts might be the decision he prefers, and would have enacted explicitly if he had been able to do so. It might, that is, represent his hopes. If so, and if a sufficient number of other congressmen express the same hope, that would represent the will of congress. But a congressman’s prediction might represent not his hopes but simply his expectations or even his fears. In that case it would be a grave confusion to suppose that if a court fulfills his prediction it enforces his will. If the idea of a collective understanding is to play any useful role in a theory of legislation, it must be defined so that only evidence of the legislators’ hopes, not of their bare predictions however confidently these are made, count as evidence of a collective understanding.1 But that makes it less likely still that a collective understanding will exist either way in any particular case, and more likely that a court’s “discovery” of such an understanding would be only an invention.
Nothing illustrates the need for these distinctions better, in fact, than the congressional debates of 1964 leading to the Civil Rights Act. Opponents repeatedly argued that Title VII would allow federal agencies to impose racial quotas on private industry. They detested such interference, and they hoped to enlist the aid of others who also did. In the event, the statute was amended, by adding section 703(j) to Title VII, which expressly declared that nothing in the act should be construed to allow such imposed quotas. But if the act had not been amended, it would have been perverse to cite these statements of opponents to prove that the statute did accomplish what they feared. It would have been equally perverse to cite those proponents of the bill who argued that the statute did not allow compulsory quotas as evidence of any congressional will that such quotas be prohibited. Several of the act’s sponsors thought that it would be interpreted to prohibit such imposed quotas even before the amendment—that is certainly what they said—but it was not necessarily what even they wanted. Many backbenchers who favored the bill even before the amendment might have done so fearing that these leaders were right, but hoping that they were wrong, and that the act would be interpreted to license exactly the sort of government-supervised integration of industry that they wanted.
We must now examine Rehnquist’s argument to see which of the two concepts of legislative intent we have distinguished he himself had in mind. He builds his argument around the debate I have already described: between opponents of the Civil Rights Act in the 1964 congressional debates who said that as drafted the act would authorize federal agencies to dictate that private industries hire according to racial quotas, and proponents who replied that it would not. Several of these proponents went further, and declared that the bill would not permit any employment decisions, even voluntary decisions, to be taken on the basis of race. Senator Humphrey, for example, argued that Title VII “says that race, religion, and national origin are not to be used as the basis for hiring and firing. Title VII is designed to encourage hiring on the basis of ability and qualifications, not race or religion.”
Senators Joe Clark and Clifford Case, who were designated the bipartisan “captains” of the bill, submitted what they called an “interpretative memorandum” addressed to the problem of imposed quotas, which said “There is no requirement in Title VII that an employer maintain a racial balance in his work force. On the contrary, any deliberate attempt to maintain a racial balance…would involve a violation of Title VII because maintaining such a balance would require an employer to hire or to refuse to hire on the basis of race…. He would not be obliged—or indeed permitted—to fire whites in order to hire Negroes, or to prefer Negroes for future vacancies, or, once Negroes are hired, to give them special seniority rights at the expense of the white workers hired earlier.”
None of these statements satisfied opponents who feared government orders making racial quotas or racial balance mandatory. In the end it was necessary to introduce an amendment explicitly prohibiting such orders. This was section 703(j), which said that nothing in Title VII “shall be interpreted to require any employer…to grant preferential treatment to any individual or to any group” in order to reduce racial imbalance in the work force. Mr. Justice Brennan, writing for the majority in Weber, emphasized that this new provision said only that affirmative action was not required, not that voluntary affirmative action was prohibited. But Rehnquist emphasized instead the previous history, and the many congressional statements he had discovered arguing that the new provision was not necessary, because the act, by itself, without the new provision, barred any form of race-conscious employment or promotion program.
What does Rehnquist take these statements to show? Did they constitute an institutionalized intention, so that the statute should be construed as if these statements were formally a part of it, like an oral preamble? That is extremely implausible. There is no legislative convention that automatically turns the statements even of key leaders, even of “bipartisan captains,” into preambles. If there were such a convention, it would not have been appropriate for opponents of the bill to voice fears after the reassuring statements had been made. On the contrary, it would have been preposterous. Nor would it have been necessary to add section 703(j). That would have been redundant, merely repeating what Senators Humphrey, Clark, Case, and others had already added to the bill.
The fact that Congress added 703(i) shows that congressmen do not acknowledge a convention that turns the statements of important senators into amendments. Of course these statements might have been offered and taken by everyone to constitute an institutionalized intention. But plainly they were not. The leaders Rehnquist quoted offered their own opinions about the effect of the bill simply as their opinions, which continued to be contested by others, so that it was necessary to resolve the matter by formal amendment. A backbench senator or representative voting for the Civil Rights Act need not have supposed that he was bound by what Humphrey or the Clark-Case memorandum said the Civil Rights Act would do, and it is unfair—and contrary to democracy—to insist that he was.
Does Rehnquist think, on the contrary, that the statements of the leaders he quoted are evidence of some shared psychological state, some collective understanding of the legislators as a whole? If so, then the evidence is very thin indeed. Rehnquist is able to cite the remarks of only a relatively few congressmen, whom he interprets as holding the opinion that the act would forbid affirmative action plans like the Kaiser plan. He cites several who thought that until the act was amended it would have authorized mandatory government racial quotas based on percentages of blacks in the labor force, and who must therefore have held the contrary opinion on affirmative action plans, that is, that the act would permit industry to do voluntarily what the government could order it to do.
Nothing suggests that most of the legislators—or enough of those who voted for the act to pass it unaided—accepted either of these two opinions, or if so which, or indeed that they had any opinion at all. But even if we assume that they did, and that they agreed with Rehnquist’s interpretation, it hardly follows that that was their will. Many might seriously have regretted that they must enact a statute that would block affirmative action (assuming they thought that they were doing so) in order to prevent outright racial discrimination in employment. They would have been pleased to be persuaded that their judgment of how the act would be interpreted was wrong.
Indeed the only remarks in either house that said directly that it would be illegal under the act for a black employer to prefer black employees so as to improve the economic condition of blacks stated that this was a matter of great regret. (This was a staged dialogue between Senators Curtis and Cotton, opponents of the bill, whose sympathy for the black employer might have been diplomatic.) If Rehnquist means to use the psychological concept of a composite intention, then, his use displays every one in the long catalogue of flaws in that misunderstood concept. It is not simply that we need more evidence to discover what the collective understanding was. Rather the evidence we have suggests that there was none to discover.
So Rehnquist’s argument fails whether we take it to rely on the institutional or the psychological concept of legislative intent. Its appeal to him might have come from a failure to distinguish these two concepts, so that he could take arguments for the psychological branch as arguments for the warrant of the institutional branch. He should not have taken this occasion so violently to tax his colleagues with using slipshod arguments to cover a purely political judgment, for his own arguments were much weaker than he thought.
We must ask, however, whether the majority had better arguments than Rehnquist had. For his charge that their decision was based on purely personal political convictions is not answered simply by showing that his own arguments are poor. The opinion for the majority was written by Mr. Justice Brennan. It contains two different arguments, one of them explicit, and one that must be reconstructed from independent remarks. The explicit argument is the mirror image of Rehnquist’s opposing argument and suffers from the same defects. It uses general remarks about the purpose of the Civil Rights Act, together with the fact of section 703(j), to establish a legislative intention to exempt affirmative action from Title VII. Brennan is not explicit whether this is an institutionalized intention or a collective understanding.
If Congress did not intend to permit voluntary affirmative programs, he argues, it would have stated in 703(j) that such programs were neither required nor permitted; but it said simply that they were not required. “The natural inference is that Congress chose not to forbid all voluntary race-conscious affirmative action.” That inference is not natural but fallacious. The argument shows that Congress did not choose to outlaw affirmative action, but it does not follow that Congress chose not to do so. Personifying the Congress encourages the mistake (Brennan’s opinion is full of phrases like “Congress’s primary concern…,” Congress feared…,” etc.). But it is not true even in the case of an individual that he either chooses to permit something or chooses not to permit it. He may have chosen neither.
Brennan’s second argument is much more successful. If made more explicit, it would take something like the following form.
1) We can identify an uncontroversial political policy that fully supports the main provisions of Title VII of the Civil Rights Act. This is the policy of ameliorating the economic inferiority of blacks and other minorities. Many members of both houses expressly endorsed that policy, and no one contested it.
2) That policy will be advanced by permitting plans like Kaiser’s. It would be sharply arrested by making such plans illegal.
3) Section 703(j) is supported by a different, and to some degree competing, political principle, which is that it is wrong for the government to intervene in private hiring and personnel policy simply to secure a racial balance. Even though such intervention would advance the main policy of achieving greater economic racial equality, it is wrong because it abrogates what Brennan calls “traditional management prerogatives.” Though this principle is not uncontroversial there is no dissent from it in the legislative history, either.
4) A rule forbidding voluntary affirmative action would certainly constitute an intervention in traditional management decisions, therefore violating the principle supporting section 703(j), and it would be, moreover, not an intervention advancing the core policy of economic equality but one impeding that policy, and so condemned by that principle a fortiori. For all these reasons, the statute should not be construed to forbid the Kaiser plan.
Is this a good argument? It does not in any way personify Congress, or presuppose a congressional intention, in either sense, to exempt private and voluntary race-conscious employment plans from the act. So it does not suffer from the mistakes of Brennan’s first argument, or of Rehnquist’s opinion. It rests instead on a different theory of legislation, which we might call the coherence theory. This supposes that a statute should be interpreted to advance the policies or principles that furnish the best political justification for the statute.
It may, of course, be controversial which principles or policies supply the best justification for a particular statute, or for some particular provision or limitation of that statute. Nor is it possible to state any mechanical formula for determining the answer to that question. A proposed justification cannot be accepted, of course, unless it is consistent with the provisions of the statute and finds substantial support in the political climate of the time. The justification Brennan provided for Title VII of the Civil Rights Act—the policy of promoting economic inequality between the races, subject to the principle that private employers should not be forced to maintain a racial balance—meets that test of consistency. The main provisions of Title VII, which forbid traditional discrimination against blacks, could be expected to reduce economic inequality, and though the various speeches Brennan cited, which include a statement by President Kennedy as well as statements by various senators, do not establish that all the congressmen had this justification in mind, they do establish that the justification had wide currency and political appeal.
But though Brennan’s proposed justification does meet this test of consistency, other, different justifications might meet the test as well. It is, in fact, easy to construct a different justification according to which the coherence theory of legislation would support not the decision of the majority in favor of affirmative action but Rehnquist’s opinion condemning it. We might say that Title VII is justified, not by a policy of promoting economic equality, but by the principle that any use of race-conscious criteria in hiring or promoting employees is unfair. That principle also fits the central provisions of the statute, and it is also supported by a substantial section of political opinion. But if that principle is taken to be the justification of Title VII, rather than the policy of promoting racial equality, then it is a decision for Weber, rather than a decision in favor of the Kaiser plan, that is most consistent with the statute so justified.
How is a court to choose between two justifications for a statute, each of which fits the statute and finds a basis in political opinion? Of course, if one of these justifications has been attached to the statute as an institutionalized intention, through some legislative convention of the sort described earlier, then the court must apply that justification even though it prefers another. If the legislative history shows that while one justification had great support among a number of legislators, the other went unnoticed or was rejected by all who noticed it, then that might well be some evidence that the second does not, after all, reflect any widespread political opinion. But in most hard cases testing whether a statute applies in controversial circumstances, when there are two justifications available that point in opposite directions, both justifications will fit well enough both the text of the statute and the political climate of the day, and neither will be attached to the statute by convention.
Weber was such a case. In these cases I see no procedure for decision—no theory of legislation—other than this: one justification for a statute is better than another, and provides the direction for coherent development of the statute, if it provides a more accurate or more sensitive or sounder analysis of the underlying moral principles. So judges must decide which of the two competing justifications is superior as a matter of political morality, and apply the statute so as to further that justification. Different judges, who disagree about morality, will therefore disagree about the statute. But that is inevitable, and if each judge faces the moral decision openly, an informed public will be in a better position to understand and criticize them than if the moral grounds of decision lie hidden under confused arguments about nonexistent legislative intents.
It is no use protesting that this procedure allows judges to substitute their own political judgment for the judgment of elected representatives of the people. That protest is doubly misleading. It suggests, first, that the legislators have in fact made a judgment so that it is wrong for the judges to displace that judgment. But if there is no institutionalized intention, no pertinent collective understanding, and two competing justifications, there is no such judgment. Second, the protest suggests that judges have some way to decide such a case that does not require them to make a political judgment. But there simply is no such procedure, except a method that leaves the decision to chance, like flipping a coin.
The jurisprudential point at stake here can be put two different ways. We can say that the legislation a statute produces, when the words of the statute are indecisive and there is no institutionalized intention, directly depends upon political morality. When a court asks, for example, whether Congress outlawed affirmative action in Title VII, the court must ask, as part of that question, whether affirmative action is unfair, because if it is, then Congress did. Or we can say that, in such a case, what Congress has done is not uncertain, but rather indeterminate: it has neither outlawed affirmative action nor not done so, so that when a court decides on the basis of a judgment about the fairness of affirmative action it cannot be displacing a congressional judgment either way. It must be supplementing that judgment in the only rational way available to it. I believe that the first of these two descriptions is more accurate: it reflects a deeper understanding of the complex idea of legislation. But the second may seem more sensible to lawyers who favor more traditional theories of that institution. The difference is not important in the present context, because under either interpretation the objection to the majority’s decision in Weber—that that decision is based on the judges’ own beliefs about the fairness and wisdom of affirmative action—is no objection at all.
We can now see why Rehnquist’s bitter condemnation of the majority was so miguided. Weber offered the Supreme Court not an exercise in reconstructing the mental states of a variety of senators and congressmen but a serious and complex issue about the nature of discrimination and the fairness of affirmative action. It was, in fact, the same issue that the Court faced in Bakke, but did not, as a Court, answer. Discrimination of the conventional sort, practiced against blacks in America for centuries, is wrong. But why? Is it wrong because any race-conscious distinction is always and inevitably wrong, even when used to redress inequality? If so, then it would be correct, under the coherence theory of legislation, to interpret Title VII as outlawing all such distinctions in employment. Or is traditional discrimination wrong because it reflects prejudice and contempt for a disadvantaged group, and so increased the disadvantage of that group? In that case, it would be sounder to attribute to Title VII the different program of outlawing such malign discrimination, and seeking to remove its inegalitarian consequences, and it would be perverse, rather than sensible, to understand the statute to bar private efforts in that direction.2
Either decision in the case—the decision of the minority as well as that of the majority—must be supported by some answer to these questions if it is to be supported at all. Chief Justice Burger’s remark—that he would vote to permit plans like Kaiser’s if he were in Congress, but nevertheless believed that Congress had made them illegal—is therefore more perplexing than it first appears. If Burger’s interpretation of Title VII can be supported only by supposing that affirmative action is wrong as a matter of moral principle, and if he does not think it wrong, because he would have voted to permit it if he were in Congress, he cannot continue in his opinion of the law. If he accepted the jurisprudential argument of this essay, that is, he would have to switch his vote in Weber and later cases.
We cannot make the same assumption about Rehnquist’s dissenting vote. He argued, as I said, that he was forced to his vote by neutral arguments of statutory construction. But even if he accepted that no such arguments are in fact available, and that any decision in the case must reflect some answer to the question of political morality, he might still answer that affirmative action is unfair and that Kaiser’s plan is for that reason barred by the statute. Nothing in his opinion suggests or assumes the contrary.
What of the five judges who made up the majority? Four of them—Justices Brennan, Blackmun, Marshall, and White—voted in Bakke to uphold the constitutionality even of the quota plan used by the Davis Medical School to assure a fixed proportion of minority students. Their votes assumed that even a quota plan did not invade the fundamental political rights of white students who were thereby denied places. So their votes in Weber are consistent with their votes in Bakke, even if we assume that their Weber votes were based on Brennan’s second and more successful argument. The fifth justice forming the majority was Mr. Justice Stewart, and that fact is, I think, of some importance.
The Bakke decision was indecisive because the four justices who held that the Davis plan was illegal under Title VI of the Civil Rights Act expressed no opinion on whether it was unconstitutional, and therefore no explicit opinion on the underlying issue: the moral issue of the fairness of affirmative action. Stewart was one of these, and his present vote with the majority in Weber is especially important if it does signal his acceptance of Brennan’s second argument, because that would establish a clear majority in favor of the principle that affirmative action of the sort used in Weber—a race-conscious policy aimed at improving racial equality and not subjecting anyone to disadvantage because his or her race is disfavored—offends no one’s political rights.
I put this point in a guarded way, because my argument does not supply any firm basis for predictions about future affirmative action cases. Stewart may have joined the majority because he accepted some argument about legislative intent, like Brennan’s first argument. In any case the majority opinion Stewart joined is carefully limited in various ways. It emphasizes, for example, that the Kaiser plan was limited to securing rather than also maintaining a racial balance, and though that distinction is irrelevant as a matter of moral principle, it might be used to limit the impact of the decision for the future.
The opinion stresses, moreover, that it is an interpretation of one title of the Civil Rights Act only, and does not speak to any constitutional issue. Nevertheless the development of constitutional law is governed more by the latent moral principles that are presupposed by a good justification of Supreme Court decisions than by the more technical arguments and limitations set out in the discrete opinions, and this is especially true when, as in Weber, these more technical points do not withstand close analysis. The Court’s decision in Weber is of great importance, and not simply because it permitted valuable programs developed by private initiative to go forward. For all its careful limitations, the case marks another step in the Court’s efforts to develop a new conception of what equality requires in the search for racial justice. In retrospect, that step will seem more important than the Court’s hesitant shuffle in Bakke.
December 20, 1979
Legislators must use theories of legislation themselves in forming beliefs or making predictions about the consequences of inexplicit statutes. But a legislator cannot use, as part of his theory of legislation, the psychological concept of legislative intent that makes his own opinion, along with the opinion of others, decisive of the content of legislation. For neither he nor they could have such opinions unless they had already applied a different theory of legislation: no group can apply the theory that the content of legislation is what that group thinks it is. Unless the concept of collective understanding is carefully limited to the hopes rather than simply the beliefs of legislators, the concept becomes incoherent. It supplies a test of the content of legislation that supposes that those whose opinions this test uses have themselves used a different test of the same thing. ↩
For a discussion of this important issue, see my articles “Why Bakke Has No Case,” NYR, November 10, 1977, and “The Bakke Decision: Did It Decide Anything?” August 17, 1978. ↩