Time to Reverse Two Bad Supreme Court Decisions

Much was written last week about the 50th anniversary of the Civil Rights Act, signed into law by President Lyndon B. Johnson on July 2, 1964. But recently there was another important historical landmark, namely the 35th anniversary of an unfortunate milestone in that law’s interpretation: United Steelworkers v. Weber, decided on June 27, 1979, by the Supreme Court. In this week’s email, adopted from a column I published on National Review Online, I’ll explain why this case is noteworthy.

In Weber the Court allowed “affirmative action” discrimination against a white employee, notwithstanding the clear language of the 1964 Act, which prohibits all discrimination based on race. White male Brian Weber, a production worker at Kaiser Aluminum & Chemical Corp. in Gramercy, La., had sought selection for a craft-training program and lost out to an African American with less seniority because of an affirmative-action plan. Justice Brennan’s majority opinion held that such discrimination was permissible where there was “manifest racial imbalance” in “traditionally segregated job categories.”

The decision was 5–2, with two justices recused and Chief Justice Burger and Justice Rehnquist dissenting. Rehnquist’s angry and eloquent dissent painstakingly reviewed the text and history of the statute. He began by saying that the majority opinion was “ahead of its time” and would “more appropriately have been handed down five years from now, in 1984, a year coinciding with the title of a book from which the Court’s opinion borrows, perhaps subconsciously.”

The Court took the same approach eight years later in Johnson v. Santa Clara County Transportation Agency, extending Weber to affirmative discrimination on the basis of sex at the expense of one Paul Johnson, another blue-collar white male. Again Justice Brennan’s majority opinion commanded only five votes, with Justice O’Connor concurring separately and Chief Justice Rehnquist, Justice White, and Justice Scalia dissenting. Justice Scalia’s dissent was even angrier and more eloquent than Rehnquist’s had been.

The unfairness and disregard for law in these two decisions is compounded by the fact that under the purported authority of Executive Order 11246, issued by President Johnson in 1965, the Labor Department has propounded blatantly illegal regulations that require federal contractors to adopt goals and timetables for hiring and promoting women and minorities if they are “underrepresented” in the workforce.

Justice Brennan’s Weber opinion cannot really be defended, but it can be understood. It was explicitly a product of its time, when Jim Crow had only recently ended and in some cases the beneficiaries of affirmative action had themselves been direct victims of that system.

That rationale, however understandable it may once have been, is no longer available, so today’s employers declare instead that they “celebrate diversity.” Their lawyers ought to know that the federal courts have never recognized a “diversity” rationale for employment discrimination (unlike university admissions, where it is sometimes permissible) under the 1964 Act, and at least one has rejected it. Nor are the courts likely to recognize such a rationale, since, for example, the statute pointedly allows no “bona fide occupational qualification” for race. What’s more, the Johnson decision made clear that preferences are to be used only “to attain a balanced work force, not to maintain one” (emphasis in original), a proviso that is inconsistent with the diversity rationale.

Nonetheless, eight out of ten business executives said that affirmative-action programs had resulted in their giving jobs and promotions to applicants who were less qualified than others, according to a 1997 survey conducted by Yankelovich Partners and commissioned by the PBS show Nightly Business Report. Things have only gotten worse since then (with faculty discrimination being especially blatant).

Companies celebrate diversity because, we are told, it is good for business. But the evidence here is at best mixed, and it is hard to see how hiring people in part on the basis of skin color or national origin, rather than simply on merit, could do anything but hamper productivity. Race and ethnicity are poor proxies for having a particular perspective or background; why stereotype someone with a Latino name as a Spanish-speaker who will know how to sell a particular product in South Texas, when she may be an English-only Puerto Rican from the Bronx?

In all events, as a matter of law, any employer using preferences must meet Weber’s remedial predicate, showing a “manifest imbalance” in a “traditionally segregated” position. But 50 years after the 1964 Act made other employment discrimination illegal, there is not much “traditional segregation” left, especially for employers who have been celebrating diversity for years by cheerfully discriminating in favor of “underrepresented” minorities.

The Supreme Court’s 2009 decision in Ricci v. DeStefano — the New Haven firefighters case — further suggests that an employer’s track record of discrimination against, say, Hispanics must be so bad and so recent that if the employer did not compensate by providing a preference, there is a “strong basis in evidence” that it could be successfully sued for that failure. That’s a very high bar.

Weber and Johnson also held that preferences cannot “unnecessarily trammel” the interests of non-preferred employees. In 2014, there will never be a situation where the “necessary” way to remedy discrimination is through practicing more discrimination, rather than simply stopping discrimination. The Court’s opinion a year ago in Fisher v. University of Texas likewise stressed that racial preferences in university admissions may be used only as a last resort.

Properly construed, then, Weber ought to have little force today, and there would be less mischief if the Supreme Court would overturn it. But litigation is uncertain and there is no need to wait. The Court’s decision this spring in Schuette v. BAMN makes clear that states have the authority to ban preferential treatment, and — better yet — Congress itself can (and should) clarify the meaning of the 1964 Act.

There will be predictable cries that it is a travesty for Congress to celebrate the 50th anniversary of the Act by “gutting” it. But it was the Supreme Court that gutted the Act when it ruled against Brian Weber, and Congress would not be gutting the statute but restoring it.

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