Title VII and the Roberts Court's Worldview Supremacy

By Turner, Ronald | Labor Law Journal, Fall 2014 | Go to article overview

Title VII and the Roberts Court's Worldview Supremacy


Turner, Ronald, Labor Law Journal


I. Introduction

In this age of statutes,1 the federal judiciary performs the critical institutional function of interpreting and applying statutes in cases and controversies brought to the courts for adjudication and decision.2 The judiciary, acting within the separation-of-powers structure of the United States Constitution, has been referred to as the faithful agent of the United States Congress3 and declares what the law is; on that view, judges should not make law or "substitute [judicial] . . . policy preferences through the creation and application of public value canons for the preferences of Congress as articulated in the words and history of the statute."4 Others have argued that it is inevitable that judges do and will make law as they fill statutory gaps and seek answers to post-enactment questions about the operative meaning of a statutory provision not anticipated or expressly answered by the legislature.5 On that account, the judge "legislates only between gaps. He fills the open spaces in the law. How far he may go without traveling beyond the walls of the interstices cannot be staked out for him upon a chart."6

Judges engaged in the enterprise of statutory construction in cases presenting adversarial parties' contested readings of statutory provisions select from a menu of interpretive approaches as they seek to "reach accurate outcomes or promote other policy goals in deciding cases and controversies."7 That menu includes but is not limited to textualism, intentionalism, purposivism, and deference to administrative agencies.8 As "no provision [of the Constitution] sets out explicit instructions to judges about the limits of interpretive flexibility or about what other sources or considerations are admissible or relevant to help interpret the text,"9 no single interpretive approach is mandated. Accordingly, "a judge may embrace all the available tools as theoretically legitimate and selectively employ those that are best suited for the particular case."10 "A judge could, in his or her judgment, rely on statutory text in one case, legislative history in the next, and perhaps rely on some broad invocation of legislative purpose or pragmatic consideration in the following decision."11

A federal judge who selects and employs one of the aforementioned (or other) interpretive methodologies brings to the bench "life experience, personal-identity characteristics such as race and sex, temperament, ideology (often influenced by personal-identity characteristics, religion, and party loyalties), ideas of sound public policy whether or not ideologically inflected, considerations of administrability and workload, moral beliefs, collegial pressures, public opinion, family background, reading, sentiment and aversions, even indifference . . ."12 Judges have biases and priors-"the expectations, formed by background, experience, and temperament, that every decision maker brings to a dispute that he is asked to resolve."13 To say this is to recognize that "[w]e all have underlying assumptions and conceptual commitments-'priors'-that don't (and can't) get revisited every time we read or write something."14 A difference in priors can matter result in cases in which judges "read the same briefs [and] hear the same oral argument.. ."15 Thus, in some cases a judge may be influenced by her priors, and her decisions may reflect her ideology, values, political and public policy preferences, conceptions and preconceptions, baselines, assumptions, administrability concerns-her worldview.16

This article, focusing on Title VII of the Civil Rights Act of 1964 (Title VII),17 explores the adjudicative role that judicial worldviews have played in the Roberts Court's interpretation and application of the statute's prohibition of discrimination on the basis of an individual's race, color, religion, sex, or national origin. The "Roberts Court" refers to Chief Justice John G. Roberts, Jr., who joined the Court in September 2005, and the ten other Justices who have served with him: Justices John Paul Stevens, Antonin Scalia, Anthony M. …

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