The Tempting of America
Page 14
Douglas named the buffer zone or “penumbra” of the first amendment a protection of “privacy,” although, in NAACP v. Alabama, of course, confidentiality of membership was required not for the sake of individual privacy but to protect the public activities of politics and litigation. Douglas then asserted that other amendments create “zones of privacy.” These were the first, third (soldiers not to be quartered in private homes), fourth (ban on unreasonable searches and seizures), and fifth (freedom from self-incrimination). There was no particularly good reason to use the word “privacy” for the freedoms cited, except for the fact that the opinion was building toward those “sacred precincts of marital bedrooms.” The phrase “areas of freedom” would have been more accurate since the provisions cited protect both private and public behavior.
None of the amendments cited, and none of their buffer or penumbral zones, covered the case before the Court. The Connecticut statute was not invalid under any provision of the Bill of Rights, no matter how extended. Since the statute in question did not threaten any guaranteed freedom, it did not fall within any “emanation.” Griswold v. Connecticut was, therefore, not like NAACP v. Alabama. Justice Douglas bypassed that seemingly insuperable difficulty by simply asserting that the various separate “zones of privacy” created by each separate provision of the Bill of Rights somehow created a general but wholly undefined “right of privacy” that is independent of and lies outside any right or “zone of privacy” to be found in the Constitution. Douglas did not explain how it was that the Framers created five or six specific rights that could, with considerable stretching, be called “privacy,” and, though the Framers chose not to create more, the Court could nevertheless invent a general right of privacy that the Framers had, inexplicably, left out. It really does not matter to the decision what the Bill of Rights covers or does not cover.
Douglas closed the Griswold opinion with a burst of passionate oratory. “Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.”54 It is almost a matter for regret that Connecticut had not threatened the institution of marriage, or even attempted to prevent anyone from using contraceptives, since that left some admirable sentiments, expressed with rhetorical fervor, dangling irrelevantly in midair. But the protection of marriage was not the point of Griswold. The creation of a new device for judicial power to remake the Constitution was the point.
The Griswold opinion, of course, began by denying that any such power was being assumed. “[W]e are met with a wide range of questions that implicate the Due Process Clause of the 14th Amendment. Overtones of some arguments suggest that [Lochner v. New York] should be our guide. But we decline that invitation. … We do not sit as a super-legislature to determine the wisdom, need, and propriety of laws that touch economic problems, business affairs, or social conditions.”55 Griswold, as an assumption of judicial power unrelated to the Constitution is, however, indistinguishable from Lochner. And the nature of that power, its lack of rationale or structure, ensured that it could not be confined.
The Court majority said there was now a right of privacy but did not even intimate an answer to the question, “Privacy to do what?” People often take addictive drugs in private, some men physically abuse their wives and children in private, executives conspire to fix prices in private, Mafiosi confer with their button men in private. If these sound bizarre, one professor at a prominent law school has suggested that the right of privacy may create a right to engage in prostitution. Moreover, as we shall see, the Court has extended the right of privacy to activities that can in no sense be said to be done in private. The truth is that “privacy” will turn out to protect those activities that enough Justices to form a majority think ought to be protected and not activities with which they have little sympathy.
If one called the zones of the separate rights of the Bill of Rights zones of “freedom,” which would be more accurate, then, should one care to follow Douglas’s logic, the zones would add up to a general right of freedom independent of any provision of the Constitution. A general right of freedom—a constitutional right to be free of regulation by law—is a manifest impossibility. Such a right would posit a state of nature, and its law would be that of the jungle. If the Court had created a general “right of freedom,” we would know at once, therefore, that the new right would necessarily be applied selectively, and, if we were given no explanation of the scope of the new right, we would know that the “right” was nothing more than a warrant judges had created for themselves to do whatever they wished. That, as we shall see in the next chapter, is precisely what happened with the new, general, undefined, and unexplained “right of privacy.”
Justice Black’s dissent stated: “I like my privacy as well as the next one, but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.”56 He found none. “The Court talks about a constitutional ‘right of privacy’ as though there is some constitutional provision or provisions forbidding any law ever to be passed which might abridge the ‘privacy’ of individuals. But there is not.” He pointed out that there are “certain specific constitutional provisions which are designed in part to protect privacy at certain times and places with respect to certain activities.” But there was no general right of the sort Douglas had created. Justice Stewart’s dissent referred to the statute as “an uncommonly silly law” but noted that its asininity was not before the Court.57 He could “find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever before decided by this Court.” He also observed that the “Court does not say how far the new constitutional right of privacy announced today extends.” That was twenty-four years ago, and the Court still has not told us.
* There is a theory that the guarantee clause requires states to avoid obvious and egregious deviations from their own laws, without imposing a uniform, federal standard. Note, The Rule of Law and the States: A New Interpretation of the Guarantee Clause, 93 Yale L.J. 561 ( 1984). If so, that would have solved Baker, since Tennessee had a constitutional provision requiring periodic reapportionments which the state had ignored.
4
After Warren: The Burger and Rehnquist Courts
The moral imperialism of the Supreme Court did not end with Chief Justice Warren’s resignation nor with the departures of the Justices who made up his distinctive majority. The Courts headed by Chief Justice Warren Burger and now by Chief Justice William Rehnquist, while perhaps less relentlessly adventurous than the Warren Court, displayed a strong affinity for legislating policy in the name of the Constitution. As before, departures from the Constitution invariably incorporated part of the modern liberal agenda.
Though the popular press portrayed the Court after Warren as relatively conservative, that was an error of parallax, akin to the misreading of time that occurs when a clock’s hands are viewed from the side rather than straight on. From the media’s perspective, the Burger and Rehnquist Courts were conservative. In truth, judging by decisions that are not compelled by or that run contrary to the Constitution and statutes, those Courts were more liberal than the American people.
Examination must again be confined to a few typical examples of judicial revisionism. The themes around which such decisions cluster in this era are those at the center of modern liberalism’s imperatives: questions of race, gender, and sexual freedom.
The Transformation of Civil Rights Law
We may begin with examples concerning gender and race. These cases demonstrate that judicial revisionism, once let loose, does not confine itself to rewriting the Constitution but imposes its political stamp on statutes as well. Though it is said that Congress is free to correct
a judicial misinterpretation of a statute, that is often not in fact true. Drafting, amending, and enacting a bill can be a highly contentious affair that succeeds only because of compromises within the legislature. The final statute reflects the balance of forces in Congress, which in turn reflects the various states and intensities of legislative sentiment in the electorate. The legislation that results may be compared to a contract in which each side gives the other something in order to get some of what it wants. When the Supreme Court distorts a statute, one side gets more than its bargain and the other gets less. And, when the statute deals with intensely political matters, there is little or no disposition on the part of the legislators to whom the judges have given a free victory to return to the matter and give the other side what it bargained for. The Court’s alteration of the law becomes permanent.
The Court’s transformation of an important antidiscrimination statute, Title VII of the Civil Rights Act of 1964, illustrates the point. The change began in 1973 in Griggs v. Duke Power Co.1 A group of black employees challenged the company’s requirement of a high school diploma and a satisfactory intelligence test score for certain jobs previously given only to white employees. There was no doubt the company had discriminated in the past, but the trial court found, and the finding was not overturned, that such conduct had ended. The case turned on the facts that neither the requirement of a high school diploma nor the intelligence test had been shown to “bear a demonstrable relationship to successful performance of the jobs for which it was used,” and both requirements had a disparate racial impact. Though Duke Power had no discriminatory intent, the fact that both requirements disqualified blacks at a substantially higher rate than they did whites served to show a violation of the antidiscrimination statute. The problem is that the rule as framed requires the employer to demonstrate that the requirement predicts performance on the job, and the employer must do that to the satisfaction of any one of hundreds of district judges it may draw at trial. The employer is thus given a strong incentive, in order to avoid incessant, and often hopeless, litigation, to adopt a quota system so that there can be no allegation that its hiring procedures have a disparate racial impact.
The Duke Power decision, made by a unanimous Court, tended to press in the direction of equality of results rather than equality of opportunity,2 though Chief Justice Burger, who wrote the opinion, certainly did not intend that. Indeed, the rationale of his opinion was clearly one of equal opportunity, the results to be determined by individual merit. In light of what came afterward, however, it is instructive to read his interpretation of what the law commanded. “Discriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed.”3 Moreover, “Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.”
By 1979, the Chief Justice’s view had become a minority position. In United Steelworkers of America v. Weber,4 the Court decided that racial preferences were, after all, allowed by the Civil Rights Act. The Steelworkers and Kaiser Aluminum and Chemical Corporation entered into a master collective-bargaining agreement that included a plan to eliminate racial imbalances in Kaiser’s almost exclusively white craftworkers. To that end, hiring goals were set for each of Kaiser’s fifteen plants. The percentage of black craft workers was to be made to equal the percentage of blacks in the various local labor forces. The plan reserved for blacks 50 percent of the openings in the in-plant training programs until the requisite proportions were reached. At the plant in Gramercy, Louisiana, thirteen trainees were selected from the production work force, seven blacks and six whites. The most senior black had less seniority than several white workers who were rejected. One of the latter, Brian Weber, sued under the 1964 Act.
A majority of the Supreme Court, in an opinion by Justice Brennan, held that Congress’s purpose had been to break down barriers to black employment, and therefore Congress could not have intended to prevent an employer from giving preference to blacks. Of course, the first statement does not lead to the second. If Congress intended to prevent discrimination against any “individual,” which is what the statute said, a prohibition of discrimination on grounds of race would follow. In that case, Weber would win, as the trial court and court of appeals had held he should. The Court made of the 1964 Civil Rights Act a law that Congress had not written, one that allowed employers to prefer individuals, who had not been discriminated against, because of their membership in a racial group which was not proportionally represented in the work force. Chief Justice Burger’s dissent said the majority’s position was “contrary to the explicit language of the statute,”5 accomplished “precisely what both its sponsors and its opponents agreed the statute was not intended to do,” and was “wholly incompatible with long-established principles of separation of powers.” Justice Rehnquist’s lengthy dissent demonstrated beyond question that everybody in Congress understood that the act would not permit employers to prefer any individual because of race, no matter what that race was.6 The transformation of Title VII of the Civil Rights Act of 1964 into a group entitlement law rather than an antidiscrimination law was completed in Johnson v. Transportation Agency, Santa Clara County.7 The Transportation Agency adopted an Affirmative Action Plan that applied, among other things, to employee promotions. The plan’s rationale was that “‘mere prohibition of discriminatory practices is not enough to remedy the effects of past practices and to permit attainment of an equitable representation of minorities, women and handicapped persons.’” The plan therefore permitted consideration of a person’s membership in one of these groups in making decisions about employment and promotion. The persons to be favored because of membership in a named group were not persons who had been discriminated against. Nor was there any showing that there had been any discrimination against any persons in the past. Preference for individuals was given simply because the group to which he or she belonged was not “equitably” (read “proportionately”) represented in a job category.
The agency announced a vacancy for the position of road dispatcher. Seven employee applicants were found qualified and received scores above 70 in an interview, which meant they were eligible for selection by the appointing authority. Paul Johnson received a score of 75, which tied him for second. Diane Joyce scored 73. A second interview was conducted by three supervisors, who recommended that Johnson be promoted. But Joyce had gone to the county’s Affirmative Action Office, which then communicated with the agency’s Affirmative Action Coordinator, who in turn recommended to the agency’s director that Joyce receive the promotion. She did. Nobody claimed the recommendation of Johnson was discriminatory. Joyce received the promotion instead because she was female. There had not been a female road dispatcher, and the agency wanted a “balanced” work force.
The Court majority, in an opinion by Justice Brennan, upheld the preference: “the Agency appropriately took into account as one factor the sex of Diane Joyce. … The decision to do so was made pursuant to an affirmative action plan that represents a moderate, flexible, case-by-case approach to effecting a gradual improvement in the representation of minorities and women in the Agency’s work force. Such a plan is fully consistent with Title VII, for it embodies the contribution that voluntary employer action can make in eliminating the vestiges of discrimination in the workplace.”
That last sentence should be read again. Taking sex or ethnicity into account is consistent with the statute, because the employer is contributing to eliminating the vestiges of discrimination. No discrimination had been shown, of course, and the trial court found as a fact that there had been none. But these days discrimination in the past is assumed. That assumption is then used to justify actual discrimination in the present. Johnson won a promotion because of his merits, then lost it because of his sex. Even if that were an equitable social policy, that policy, as enunciated by the Court majority, plainly violates Title VII of the Civil
Rights Act. Compare the passage quoted from Justice Brennan’s opinion above with the actual language of the statute the Court was to apply.
The statute makes no allowance for “moderate, flexible, caseby-case” methods of preferring women or minorities to white males. Instead, it states: