The following essay for our Race and the Supreme Court program is by Debo P. Adegbile, the Director of Litigation at the NAACP Legal Defense and Educational Fund, Inc. Last term in Northwest Austin Municipal Utility District No. One v. Holder, he argued in defense of the federal preclearance provision of the Voting Rights Act of 1965 in a constitutional challenge before the Supreme Court.
Our Constitution, properly understood, calls for a conversation between the branches of our government about the appropriate mechanisms for enforcement of the civil rights of African Americans and other minorities. Indeed, the Reconstruction Amendments explicitly carve out a role for Congress to interpret the Constitution's equality principles. Section Five of the Fourteenth Amendment explicitly tasks Congress with the duty "to enforce, by appropriate legislation, the provisions of this article." This means that the Supreme Court is not the sole branch of government with an affirmative duty to determine what the Constitution means.
Congress's use of this enforcement authority launched a vital phase of our national struggle to build a more perfect union. By the latter half of the twentieth century, Congressional exercise of its Fourteenth Amendment enforcement powers received the full blessing of a unanimous Court. In Fitzpatrick v. Bitzer, a decision upholding Congress's Fourteenth Amendment power to abrogate the States' sovereign immunity through Title VII of the Civil Rights Act of 1964, the Court summarized its understanding of Congressional enforcement powers as follows: "There can be no doubt that this [Court] has sanctioned intrusions by Congress, acting under the Civil War Amendments, into the judicial, executive, and legislative spheres of autonomy previously reserved to the States."
Recognition by the Court of Congress's role in the constitutional conversation corresponds with Congress's enactment of legislation that has moved our nation toward equality. For example, the ideals articulated in Brown v. Board of Education only began to be realized on a wide scale after Congress passed Title VI of the Civil Rights Act of 1964 and the Elementary and Secondary Education Act of 1965, which together effectively tied federal funding of public schools to desegregation efforts. Equality in the workplace was not a realistic possibility until Title VII finally put the federal government's imprimatur on workplace fairness. And Section 5 of the Voting Rights Act of 1965 checked persistent and adaptive efforts to deny African Americans and other minorities of their voting rights.
The conversation, however, cannot be mistaken for complete alignment. For example, the 1982 Amendments to the Voting Rights Act responded to a narrow Supreme Court interpretation of the Act. The Amendments paved the way for increased political equality, and resulted in the election of substantial numbers of African Americans to Congress and local offices, in many cases for the first time since Reconstruction.
The history of the Title VII disparate impact standard exemplifies the symbiosis between the two branches as each seeks to give force to the Fourteenth Amendment. In 1971, the Supreme Court interpreted Title VII broadly in Griggs v. Duke Power to prohibit any employment practice that has the effect of excluding individuals on the basis of race without business justification. In turn, when Congress amended Title VII in 1972, it expressly approved this judicial interpretation of the statute. Drawing on each other's interpretations, the Court and Congress united in the view that Title VII could be used to eradicate the long history of discrimination in the labor markets. When the Court abruptly changed its mind in 1989, effectively eviscerating the Griggs standard in Wards Cove Packing Co. v. Atonio, Congress spoke back, promptly restoring through bipartisan legislation the disparate impact test to its pre-Wards Cove position in 1991.
The way in which the Court will accommodate Congress's prerogative and duty under the Reconstruction Amendments in the future is difficult to predict. The Amendments have not changed but the Court's view of them is in flux. With City of Boerne v. Flores, the Court began to pull back from its historic endorsement of Congress's broad powers as articulated in cases like South Carolina v. Katzenbach, and Bitzer. Boerne articulated a muscular doctrine limiting Congressional authority: Congress would now be required to carefully demonstrate a specific remedial justification before exercising its enforcement power under Section 5 of the Fourteenth Amendment, and the Court would review whether Congress's judgments were in fact "congruent and proportional" with the demonstrated harm.
Applied judiciously, the Boerne "congruence and proportionality" test could be used to properly police the outer boundary of Congressional authority. But in attempting to police the boundaries of what is permissible within the confines of a heightened concern for principles of federalism, the Court appears to have waded into a constitutional quagmire of separation of powers. As Justice Scalia, who takes federalism principles very seriously, observed in his dissent in Tennessee v. Lane, the congruence and proportionality test threatens to
“…cast this Court in the role of Congress’s taskmaster. Under it, the courts (and ultimately this Court) must regularly check Congress’s homework to make sure that it has identified sufficient constitutional violations to make its remedy congruent and proportional. As a general matter, we are ill advised to adopt or adhere to constitutional rules that bring us into constant conflict with a coequal branch of Government.”
Congress is not merely a co-equal branch of government. Congress is the branch of government with fact-finding and policy expertise, and the Court is particularly ill-equipped to second-guess Congress's judgment in an area where Congress is expressly delegated authority by the Constitution. And indeed, the Boerne Court recognized that "[w]hen Congress acts within its sphere of power and responsibilities, it has not just the right but the duty to make its own informed judgment on the meaning and force of the Constitution."
Thus, careful application of Boerne seems more difficult to achieve in practice than in concept. Last term in NAMUDNO v. Holder, the Court appeared eager to consider the constitutionality of Section 5 of the Voting Rights Act, a piece of legislation supported not only by a substantial factual record, but also by four earlier precedents of the Court approving Congress's power to vigorously protect minority voters. During oral argument, several members of the Court asked questions that seemed directed at whether Congress should have reauthorized Section 5, rather than whether Congress could constitutionally do so. Similarly, the Court's opinion, which turned on a statutory interpretation of the Voting Rights Act, delves more deeply than seems warranted into the constitutional question that it does not reach.
This all seems in tension with the Court's longstanding recognition of Congress's authority to protect minority voters through federal oversight of voting changes, and with the notion of stare decisis, as recently expressed in another civil rights context. In a 7-2 decision in CBOCS v. Humphries, where the Court considered the viability of retaliation claims under Section 1981, Justice Breyer explained that "even if we were to posit for argument's sake that changes in interpretive approach take place from time to time, we could not agree that the existence of such a change would justify reexamination of well-established prior law."
Title VII and the Voting Rights Act are two foundational civil rights statutes, and the cases interpreting them are "well-established prior law[s]" that undergird a good deal of statutory and constitutional adjudication. This point was driven home in Boerne itself, where the Court invoked the Voting Rights Act as the exemplar of valid enforcement legislation.
In the area of civil rights, our courts too often seem tempted by a false binary choice: Progress: yes or no? This choice, of course, is usually not an either/or proposition, and on a fair reading of the Constitution, is usually not the courts' to make. Our Nation has not reached the point where the constitutional conversation about how best to achieve equality is finished, or no longer necessary, and there are conflicting indications. We have made measurable progress, which we must proudly claim, but we have not reached the point where Congress or the courts can stand down from enforcing the guarantees of Equal Protection.
Why do civil rights protections remain important? A 2003 study from MIT showed that job seekers with white-sounding names were 50% more likely to get called for interviews than those with black-sounding names and equal qualifications. And Title VII remains significant in smoking out workplace discrimination. Last month, a district court found that the New York City Fire Department's use of a selection method that it knew would have a disparate impact on Black applicants was indicative of a pattern and practice of intentional discrimination. And this week, in oral argument before the Supreme Court in Lewis v. City of Chicago, the City of Chicago conceded that it used a discriminatory hiring practice to select firefighters on eleven separate occasions over a six-year span, arguing only that it should escape liability because plaintiffs were too slow in mounting their legal challenge.
Similar problems exist in other areas: just this week, the Department of Justice blocked implementation of a voter database matching system in Georgia that had an error rate of over 50%. Because the system threatened to disenfranchise thousands of qualified voters, a disproportionate percentage of whom were Black, Latino, and Asian American voters, the Department of Justice concluded that it violated Section 5 of the Voting Rights Act.
The casual conversation emanating from some quarters about the constitutional viability of Section 5 of the Voting Rights Act or of Title VII's disparate impact standard should give us pause. It confuses progress with victory, and it fails to take account of Congress's judgment that some forms of discrimination are particularly difficult to dislodge. As the period after Reconstruction reminds us, the march towards equality is not inexorable. We must not lose sight of the notion that the Constitution is an aspirational document"”it orients us toward progress but does not, by itself, guarantee it. Most importantly, the measurable gains we have made in embracing the equality principles of the Constitution do not foreclose our ability"”or obligation"”to seek further progress.
The constitutional conversation continues, and for all Americans our more perfect union depends upon it.