Man Without Qualities

Tuesday, February 24, 2004

Old Age And Treachery Again Beat Youth And Enthusiasm

The Supreme Court has just seriously narrowed the applicability of a major federal civil rights act over the objections of the applicable federal agency charged by Congress with enforcing and construing that act.

A collective-bargaining agreement eliminated a company's obligation to provide health benefits to certain retired employees, except as to then-current workers at least 50 years old. Other employees who were then at least 40 but less than 50 sued under the Age Discrimination in Employment Act of 1967 (ADEA), claiming before the Equal Employment Opportunity Commission (EEOC) that the agreement violated the ADEA because it "discriminate[d against them] ... because of [their] age," 29 U. S. C. §623(a)(1). That claim seemed pretty clearly correct from the statutory language, since the ADEA makes it unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." §623(a)(1).

And the EEOC agreed with the obvious meaning of the statute. In fact, the EEOC actually promulgated a regulation that confirmed that meaning:

"It is unlawful in situations where this Act applies, for an employer to discriminate in hiring or in any other way by giving preference because of age between individuals 40 and over. Thus, if two people apply for the same position, and one is 42 and the other 52, the employer may not lawfully turn down either one on the basis of age, but must make such decision on the basis of some other factor." 29 C.F.R. §1625.2(a) (2003).

The federal appeals court also agreed with the EEOC. But the Supreme Court majority said the EEOC was "clearly wrong" and overtuned the regulation.

Conservative Justices Scalia, Thomas and Kennedy dissented. The Court majority was dominated by liberals. Justice Souter wrote the tortured majority opinion.

Why would a liberal dominated majority restrict a major civil rights act? Because it is more important to some judges not to establish a principle really holding Congress to the meaning of its statutory language, even though Congress only votes on language. Such a principle would narrow the Court's ability to import its own perception of legislative "policy" into federal statutes - and some judges dearly value their ability to overturn Congressional language by an appeal to incorporeal "policy." If the civil rights of some protected workers stand in the way of that Court prerogative, then the workers' rights must go.

Such "policy" judges are disproportionately, but not solely, liberal judges. It is no coincidence that the Chief Justice and his Stanford classmate are in this majority.

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