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Federal Offense

Our discriminating Court.

Last week, the Supreme Court held that a Circuit City employee in California who claimed he had suffered race discrimination couldn't sue the electronics dealer under the state's antidiscrimination law. When he'd applied for the job, the employee had agreed to resolve employment disputes through arbitration. And last week the five conservative justices announced that the Federal Arbitration Act of 1925 requires judges to enforce arbitration agreements even when they conflict with state law. The case may seem like an anomaly: The Court's conservative majority is famous for limiting Congress's power in the name of states' rights. Here it did the opposite, expanding the scope of federal law in a way that curtailed states' rights. The ruling was particularly striking since, as the four liberal justices pointed out, employment contracts are explicitly exempted from the Federal Arbitration Act, which was intended to apply only to disputes arising from commercial and maritime contracts.

But the Circuit City ruling wasn't an anomaly. It was the latest--and clearest--evidence that the Supreme Court's so-called federalism revolution isn't really about states' rights at all. Instead, it's about the determination of the five conservative justices to claim exclusive authority to decide what counts as illegal discrimination in America. If any other governmental body--Congress, a state legislature, or a lower court--comes to a different conclusion, the justices will overturn it. And so in February those five held that state employees couldn't sue for damages when the states violated the Americans with Disabilities Act. The justices didn't think discrimination on the basis of disability was a national problem, so they nullified the clear will of Congress. In December the same five held that the Florida Supreme Court couldn't order a recount in the presidential race. The justices said counting the ballots according to different standards would discriminate against certain voters--or was it certain ballots?--even though the Florida legislature had reached the opposite conclusion, reasoning that different counting standards for different ballots were necessary to avoid discrimination. And last year, in striking down the Violence Against Women Act, the Court dismissed Congress's conclusion that the states weren't responding adequately to gender-motivated violence--treating Congress more like a lower court than an equal branch of government. These cases show that what's at stake in the Court's recent acts of self-aggrandizement is not simply the New Deal legacy of a powerful federal government. What's at stake, even more importantly, is the legacy of the civil rights era and the idea that democratically elected bodies, rather than unelected judges, should have the main responsibility for determining what constitutes illegal discrimination in America.

These days, there's not much political support for the proposition that Congress lacks the power to prohibit private business from discriminating on the basis of gender, disability, or anything else. But a generation ago it was a different story. In 1963 Robert Bork argued in this magazine that the 1964 Civil Rights Act was unconstitutional because outlawing discrimination by motels and other privately owned spaces of public accommodation violated the free-assembly rights of racist businessmen. "The danger is that justifiable abhorrence of racial discrimination will result in legislation by which the morals of the majority are self-righteously imposed upon a minority, " Bork wrote in a burst of youthful libertarianism. But, even then, Bork's was a minority view: In 1964 the Supreme Court unanimously rejected his reasoning and upheld the public-accommodations provisions of the Civil Rights Act. The justices reasoned that Congress, which has the constitutional authority to regulate interstate commerce, could plausibly conclude that racial discrimination by motel owners might affect interstate commerce.

For the next 30 years the Court interpreted Congress's power under the commerce clause very broadly, refusing to invoke its limits to strike down a single federal law. But in 1995, in the opening shot of the federalism revolution, a 5-4 conservative majority struck down the Gun-Free School Zones Act, reasoning that the connection between guns in schools and interstate commerce was too tenuous to pass constitutional muster. And last year, in striking down the Violence Against Women Act, the Court held that Congress couldn't use its commerce power to regulate noneconomic activities--such as violence--that didn't clearly affect interstate commerce.

These judicial efforts to adapt eighteenth-century limits on Congress's power to the twenty-first century might be viewed as a creative return to the pre-New Deal era--when most people agreed that Congress could pass laws regulating economic, but not social and moral, behavior. But they're also part of a more radical and far less defensible project: to usurp Congress's right to define illegal discrimination. The Fourteenth Amendment, passed in 1868, was intended to give Congress, rather than the courts, primary responsibility for enforcing equal protection of the laws. And when Congress passed the Violence Against Women Act in 1994, it reviewed what the Court later acknowledged was "voluminous" evidence that state courts and prosecutors were refusing to respond adequately to violence against women. But in striking down the law last year, the Court summarily dismissed Congress's conclusions. In parts of their opinion, the five conservatives came close to resurrecting Bork's view that Congress lacks the power to regulate discrimination by private parties--except in cases where Congress is responding to acts of discrimination that the Court itself views as unconstitutional. The five conservatives extended this view in another case last year when they held that states can't be sued for violating federal laws prohibiting age discrimination. Because the Court doesn't view age discrimination as a problem deserving heightened constitutional scrutiny, it prevented Congress from reaching a contrary conclusion.

This lack of deference to Congress is indefensible under any definition of judicial restraint. Unlike its efforts limiting Congress's power to regulate the economy, the Court has no authority to reserve for itself exclusive power to define illegal discrimination. As Alexis de Tocqueville recognized, ideas about what kinds of discrimination should be illegal change dramatically in response to the inexorable logic of democracy. As society becomes more democratic, public pressure to forbid discrimination becomes harder for politicians to resist. This is why, over the past two decades, Congress has decided that more and more forms of discrimination should be illegal--adding discrimination on the basis of age and disability to a list that originally included only race and gender. You may not like the expansion of anti- discrimination law into every corner of American life--my own view is that it fulfills Tocqueville's fears about the soft despotism of the nanny state--but there is no doubt that Congress is better equipped than the Court to represent the people's will.

Indeed, if the Court had taken a similarly selfaggrandizing view of its exclusive power to define discrimination a generation ago, it might have struck down Congress's decision in 1972 to extend federal prohibitions on gender discrimination to the states. And if it continues to take this view, it may prevent a future Congress from requiring the states to pay damages when they discriminate on the basis of sexual orientation. But when it comes to recognizing new forms of discrimination, the Court has historically followed Congress. For the Court to prevent Congress from responding to changing social understandings is as great an affront to democracy as any episode of judicial activism ventured by the Warren Court.

The best response to charges that the Rehnquist Court is engaging in unprincipled conservative judicial activism came from Chief Judge J. Harvie Wilkinson III of the U.S. Court of Appeals in Virginia, at a lecture at the American Enterprise Institute in March. Wilkinson, one of the most thoughtful and nuanced conservative judges, argued that the Rehnquist Court, unlike the Warren and Burger Courts, is acting not as an ideological combatant but as a " structural referee" among the federal government, the states, and the private sector. While the Warren and Burger Courts focused on the extremes of the political spectrum, he said--expanding federal power at one end and individual rights at the other--the Rehnquist Court is correctly protecting the interests of the intermediate organizations--states, local governments, and private groups--that Tocqueville considered necessary to "mediate between the otherwise isolated individual, and the rather awesome and remote array of national institutions."

Wilkinson argues convincingly that as the autonomy of states and civic organizations erodes, society may become "a less stable, less vital, and less nurturing place." But ultimately Wilkinson is defending the Rehnquist Court on policy grounds, not constitutional ones. Whether or not you agree that the expansion of anti-discrimination laws lead to social polarization, the Constitution explicitly empowers Congress to enforce the equal protection of the laws, and this includes the power to make empirical judgments about what kind of discrimination requires a national response.

Moreover, despite Wilkinson's provocative defense, the Supreme Court's devotion to the autonomy of states and private organizations is not always consistent or ideologically neutral. Voting-rights cases like Bush v. Gore and Shaw v. Reno show that the conservative justices are willing to overrule efforts by state legislatures to redress discrimination when they conflict with the justices' own views of what constitutes discrimination. The Court construes Congress's power narrowly when Congress subjects states to anti- discrimination suits; but, as last week's Circuit City ruling showed, the Court is equally prepared to construe Congress's power broadly when it exempts business from anti-discrimination suits.

If the conservative justices want to protect the autonomy of local organizations without usurping the power of Congress to define discrimination, they should rely not on the Fourteenth Amendment but on the First Amendment. In the Boy Scouts case last year, for example, the Court properly held that the First Amendment protects the right of private organizations like the Boy Scouts to discriminate on the basis of sexual orientation. And, in a welcome and important opinion last month, Judge Samuel Alito, a federal appellate judge in Philadelphia, held that a public school's antisexual-harassment policy violated the First Amendment.

But here, too, some conservative judges have proved inconsistent--willing to discard free speech when it clashes with, rather than supports, big business. For example, the U.S. Court of Appeals in Washington, D.C., recently upheld the Sonny Bono Copyright Term Extension Act, which extends by 20 years existing copyrights as well as copyrights in the future. The Bono bill was designed as a windfall for the Walt Disney Company, which wants to keep milking profits from Mickey Mouse. A group of lawyers led by Lawrence Lessig of Stanford Law School argued that it violates free speech and Congress's constitutional power to secure copyrights "for limited Times." After extending the terms of existing copyrights eleven times in the past 36 years, Congress now protects copyright for the life of the author plus 70 years--which in the case of Irving Berlin is 171 years. This is more than ten times longer than the initial copyright term endorsed by the first Congress. But two conservative judges on the D.C. appellate court rejected Lessig's argument that the Framers of the Constitution meant to limit terms of copyright because of the powerful public interest in free expression. Judge David Sentelle wrote a powerful dissent, invoking the Supreme Court's federalism decisions and insisting that Congress has no power to grant copyright extensions retroactively. If the conservatives on the Supreme Court refuse to reconsider this decision, they will appear less concerned with imposing principled limitations on Congress's power than with protecting the interests of business above all.

It was precisely this kind of economic partisanship that discredited conservative judicial activism in the past. During the New Deal and Progressive eras, judicial attacks on the power of Congress and the states to regulate the economy prompted FDR to retaliate with his court-packing plan. So far, popular reaction to the Rehnquist Court's imperiousness has been muted, perhaps because the federal laws the Court has struck down so far are largely symbolic. But by asserting an exclusive power to define discrimination, the Court has embarked on a battle it is likely, over the long term, to lose. In a democracy, discrimination is the greatest sin; not even Republican politicians will be able to resist pressure to forbid it in all its forms. During the previous Bush administration, for example, when the Court reduced the scope of federal discrimination laws, Congress promptly overruled the justices with the Civil Rights Act of 1991. Now the Court has grown even more arrogant, insisting that Congress lacks the constitutional power to define discrimination more broadly than the Court. The only way for Congress to defend its prerogatives is to ensure that future justices take a more deferential view of Congress's power and a more modest view of their own.