United Steelworkers of America v.

Weber (1979) (Affirmative action in Gramercy LA)

Private employers and unions may voluntarily agree upon bona fide affirmative
action plans that temporarily accord racial preferences to eliminate a conspicuous racial
imbalance in traditionally segregated job categories without unnecessarily burdening
the interests of white employees.
Title VII’s prohibition in § § 703(a) and (d) against racial discrimination does not
condemn all private, voluntary, race-conscious affirmative action plans. 703(a) applies
to employers but doesn’t include unions and 703(d) applies to unions although that one
includes employers as well.
Brennan, Blackmun and Rehnquist all disagree on the appropriate statutory
interpretations.
Weber’s Most Persuasive Opinion. Justice Brennan, writing for the majority,
held that Title VII does not condemn private, voluntary, race-conscious affirmative
action plans. The real difference of opinion in the case focused on whether a literal
interpretation of §§ 703(a) and (d) of the Act should prevail, or if the spirit of the
law rule instead. The answer for Brennan was that the literal interpretation lost the
spirit of the statute and ignored the historical realities that led to the Act’s passage.
Brennan began his analysis using Trinity Church v. United States to invoke the long
judicial history of ignoring the letter of the law when it conflicts with the law’s spirit.
He used this to argue that the spirit of the law was not merely meant to eliminate
race-conscious hiring, but instead, the purpose of the Act was to eliminate the
economic discrepancies between black and white America. Part of achieving this
goal necessitated strong affirmative action programs and he saw no evidence in the
Act that Congress “intended to prohibit the private sector from taking effective steps
to accomplish the goal that Congress designed Title VII to achieve.” Brennan did a
long legislative history analysis, but it is difficult to put too much stock in its weight
when his real argument was based on the logic that the spirit of the law is what
should prevail.
Justice Blackmun, in a concurring opinion, recognized that if read literally, Title VII
had a fatal internal contradiction in that employers could face liability for past
discrimination against blacks on the one hand, “and on the other they face liability
to whites for any voluntary preferences adopted to mitigate the effects of prior
discrimination against blacks.” If Blackmun is right in his analysis that a literal
interpretation would put employers in a damned if you do and damned if you don’t
type of situation, then regardless of ideology, or any other measure one may choose,
his interpretation must be correct.
Justice Rehnquist’s argument was that the literal interpretation of the statute was
correct based on the legislative history. Rehnquist’s legislative history analysis is as
equally convincing as Brennan’s, but I give neither credit for their efforts. With fifty-
eight days of debate in the Senate alone, enough words were spoken to prove
virtually anything. Rehnquist lost all credibility with me because he seemed
willfully ignorant of the history of entrenched racism that colored and controlled the
 congressional debate, and the cleverly disguised yet unmistakably racist appeals
that nearly destroyed the Act.
PURPOSIVISM (Weber case) – Interprets statute to effect its purpose in light of
current circumstances
Start with the Plain Meaning.
Examine the general intent and the purpose of the law.
Look at the legislative history to see the purpose that Congress had in mind for the law.
Imaginative construction can also be used for new situations. All these above things are
all shared in common with Intentionalism.
The different step is to look at the changed circumstances in today’s world how would
the purpose Congress had in mind be best effectuated. The current circumstances must
be considered and how can that purpose be furthered now.
Notes on Weber and Modes of Interpretation. The
three opinions in this case present strikingly different
normative visions of the Court’s role in statutory
interpretation.
Note 1 – Divining the “Intent” of Congress: One way
to look at the role of the interpreter of a statute is to say
that she is seeking the original intent of the author (the
enacting Congress). Rehnquist says that the Court “changed”
the meaning of the statute by judicial fiat and that they
changed the bargain. Rehnquist’s dissent assumed that an
employer discriminates on the basis of race if it makes a
race-based differentiation. But this is not the way we
usually use the word discriminate, which connotes an invidious
differentiation. As a rule, the most authoritative legislative
history is the House and Senate committee reports.
Note 2 – Pitfalls of a Purpose-Oriented
Interpretation. The truth … is that a legislature, especially
in the civil right area, generally enacts a statute aimed at a
broad philosophical concept – in this case, equality in
employment. It does not and cannot foresee much less resolve,
the myriad questions which must arise whenever a broad
philosophical proposition is applied to the protean complexity
of everyday life. Ronald Dworkin argues that the judge should
interpret the statute to advance the policy that furnishes
“the best political justification for the statute,” because
the “intent” of Congress on this issue is indeterminate.
Note 3 – Reading Statues Dynamically. In a
functional sense, Title VII of 1964 wasn’t the same as the
Title VII of 1979 because the ongoing process of
interpretation and elaboration altered the statute in response
to evolving circumstances. Title VII changed often “against”
the original legislative expectations, because the EEOC and
the Court had their own values and “spin” on the statute,
because Congress changed too along with the legal and social
context.