Commentary Magazine

Weber and the Court

To the Editor:

The Weber decision is, I fear, a much more serious defeat for the principle of nondiscrimination than Carl Cohen’s generally excellent critique suggests [“Justice Debased: The Weber Decision,” September]. Members of the Supreme Court, even those who do not read COMMENTARY and thus may have missed Mr. Cohen’s earlier tour de force, “Why Racial Preference Is Illegal and Immoral” [June], cannot be wholly ignorant of the ethical objections to racial quotas. Yet the Weber majority deigns to mention none of them and therefore answers none of them. Five Justices seemingly shared the conviction that “affirmative action” in the form of racial quotas and preferences is self-evidently just or, if not just, then a socially necessary expedient. Only such beliefs can explain the miscarriage of law that occurred in Weber: the Humpty Dumpty defiance of plain statutory language, the misrepresentation of an uncommonly clear legislative record.

Even Chief Justice Burger, one of the two dissenters, confined his criticism to the technical deficiencies of the Court’s interpretation, as distinguished from the injustice of the outcome. Indeed, he granted that the majority’s misreading of the Civil Rights Act of 1964 achieved “a desirable result,” “a result I would be inclined to vote for were I a Member of Congress considering a proposed amendment of Title VII.” (The Chief Justice somewhat inconsistently joined in the Rehnquist dissent, which concluded with a denunciation of the numerus clausus in either benign or hostile form, but one has to suppose that the purest expression of a judge’s views is his own separately-authored opinion.)

Though he did not say so, Mr. Cohen must have found Justice Blackmun’s separate concurring opinion especially appalling. Readers of Mr. Cohen’s first article will recall his strongly argued view that a racial preference is morally acceptable only insofar as it affords restitution to identifiable victims of specific acts of racial discrimination. In the Weber situation, as Mr. Cohen pointed out, “[n]ot one of the black employees who were offered on-the-job training opportunities . . . had been subject to any prior employment discrimination by Kaiser.” Justice Blackmun transmuted this moral flaw into an apologia for the Kaiser plan. Blacks who might have been real victims of past discrimination by Kaiser Aluminum, Blackmun noted, “had never sued and so had no established representative.” By its resort to coarse, unselective affirmative action, Kaiser—we are informed by Blackmun—“is able to avoid identifying victims of past discrimination, and so avoids claims for back pay that would inevitably follow a response limited to such victims.” Finessing the just but costlier claim of injured individuals is, in the opinion of a member of the nation’s highest tribunal, the “practical and equitable [!]” foundation for private racial quotas.

Mr. Cohen, retracing Rehnquist’s “scathing and detailed” dissent, shows how the Court falsified the “intent” of the 1964 Congress. What he does not say, however, is that the Weber decision quite accurately expresses the current political orthodoxy. Yes, Hubert Humphrey gave emphatic assurances as floor leader of the civil-rights bill that the law would forbid discrimination in favor of minorities as well as discrimination against them. Yes, Senator Muskie made similar statements. Ditto Senators Clark, Case, Mansfield, et al. And yes, John Lindsay made the same representations on the House side. But that was then, and this is now. Has anyone heard Senator Muskie grousing about the Weber decision? If he were alive today, would Hubert Humphrey be against any “voluntary affirmative-action plan”?

With the federal government, business, labor, civil-rights groups, the ACLU, and most editorial opinion aligned in defense of affirmative-action quotas and with only a rag-tag of amicus support on Weber’s side, it is not surprising that the Supreme Court chose to conduct a seance and commune with the ectoplasmic “spirit” of Title VII. And here I take issue with Mr. Cohen’s guardedly optimistic conclusions. In theory he is correct in suggesting that “it remains open to Congress to register its true intent so clearly that even this [Supreme Court] majority could not fail to perceive it.” But if the 1979 Congress has a “true intent” in the matter, an intent that somehow could be separated from the strong instinct of politicians to stay out of controversies that involve competing moral fervors, I suspect it would be in favor of fair-share quotas purporting to be transitional in nature, i.e., your standard affirmative-action plan.

The post-Weber battles will continue to be fought in the courts, not in the political branches, and the outlook is not good. As Bakke revealed, there are four predictable votes for quotas. It needs only the vote of Justice Powell or Stevens or (as in Weber) Justice Stewart to form a pro-quota majority in a given case. The self-proclaimed “narrowness” of Justice Brennan’s Weber opinion (“We emphasize at the outset the narrowness of our inquiry. . . . The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona-fide affirmative-action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan”) may have been the price for Stewart’s vote, but I must disagree with Mr. Cohen again to the extent that he finds in these passages a promise of wiser decisions to come.

Maurice Kelman
Wayne State University Law School
Detroit, Michigan



To the Editor:

Carl Cohen’s article makes it plain that the only way to defend the interpretation given Title VII of the Civil Rights Act of 1964 in the Weber decision is to insist that the purpose of a law must override its language and its intention alike. But that is not an altogether unappealing or absolutely insupportable contention, especially when it is called, as it is, preferring the living spirit of the law to its dead letter. The prevailing opinion in Weber, however, lacks a full and true understanding of the purpose of the law it expounds. No one who remembers the events and mood of 1964 can doubt that the congressional majority would have held that the highest purpose of the Civil Rights Act was to “establish justice.” Justice required impartial treatment of individuals, i.e., it required color-blind employment practices. Bringing blacks into the economic situation would follow, it was thought, as a necessary consequence of color-blindness. But color-blindness was even more valued for its own sake; it was fair. So the Weber majority, denying that justice is the impartial treatment of individuals, is not only contrary to the letter of the 1964 Act but hostile to its spirit.

Mr. Cohen draws some consolation from the apparent narrowness of the decision. For one thing, it is not a case involving the Constitution—not explicitly. But although both the majority of the Court and the minority, each for its own reasons, are unwilling to point it out, the decision has a constitutional dimension. For the Court must think that its interpretation of Title VII is consonant with the Equal Protection Clause, that the phrase “No person shall be denied the equal protection of the laws” allows the legislature to permit employers to discriminate in favor of blacks while forbidding them from discriminating in favor of whites. It is impossible to conceive of the Court upholding the constitutionality of a law that expressly authorized an employer to discriminate in the opposite direction. But the Court’s concept of justice strikes at the heart of equal protection. Thus in the Weber decision the lawlessness of the manner comports with the lawlessness of the matter.

All the more reason then to hope, with Mr. Cohen, that Congress will rally itself to “more emphatic legislative insistence upon the equal protection of the laws.”

R. S. Hill
Marietta College
Marietta, Ohio



To the Editor:

We are much indebted to Carl Cohen for the wisdom, moral vision, and intellectual clarity of both his articles on Weber.

Most of my academic colleagues who oppose racial preferences do so because of their great concern for competence and academic standards. This country can afford a good deal of incompetence but we cannot afford to weaken our commitment to racial and ethnic equality before the law. Prohibitions against racial discrimination cannot coexist with officially sanctioned schemes of preference to persons because of their ethnic affiliation. As Mr. Cohen so ably points out, no euphemisms can conceal the fact that what was offered to the nation as law to end racial discrimination is now being used to require or permit it.

Improved attainment (assuming such an outcome) is of doubtful benefit to a minority group if that advancement involves the erosion of hard-won standards of fairness and undermines public confidence in the rationality and evenhandedness of the judicial system.

Eleanor P. Wolf
Wayne State University
Detroit, Michigan



To the Editor:

Many years ago Arthur Krock accounted for the Supreme Court’s finding that professional baseball was a sport but professional boxing was a business. The Court’s members, he wrote, had been raised on the sandlots of America and not in Stillman’s gym.

I was reminded of this on reading Carl Cohen’s “Justice Debased: The Weber Decision.” A majority of the present Court will not tolerate blatant racial discrimination against an applicant to medical school, but will allow it in on-the-job training programs in industrial employment. These judges can evidently envision their children or the children of their social acquaintances applying to medical school. But industrial apprenticeship is apparently as remote from their experience as was Stillman’s gym from that of their predecessors.

Richard F. Schier
Franklin and Marshall College
Lancaster, Pennsylvania



To the Editor:

In connection with Carl Cohen’s article, perhaps it is appropriate to quote remarks made by Abraham Lincoln on the Dred Scott case, the politically pernicious decision of the Supreme Court in 1857 that had far-reaching consequences, most of which were the opposite of what the members of the Court sought. Lincoln said in part:

We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that, when any other one, or one thousand, shall be decided by that court to be slaves, we will in any violent way disturb the rights of property so settled; but we nevertheless do oppose that decision as a political rule which shall be binding on the voter . . . , which shall be binding on the members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. We do not propose to be bound by it as a political rule in that way, because we think it lays the foundation not merely of enlarging and spreading out what we consider an evil, but it lays the foundation for spreading that evil into the states themselves. We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject. . . .

What are the uses of decisions of courts? . . . First—they decide upon the question before the court. They decide in this case drat Dred Scott is a slave. Nobody resists that. Not only that, but they say to everybody else, that persons standing just as Dred Scott stands are as he is. That is, they say that when a question comes up upon another person it will be so decided again, unless the court decides in another way, unless the court overrules its decision. Well, we mean to do what we can to have the court decide the other way. That is one thing we mean to do.

Given the tortured judicial reasoning in the Weber decision and its political implications, why . . . has there been so little public reaction?

William E. Johnston, Jr.
California State Polytechnic University
Pomona, California



To the Editor:

Carl Cohen deserves praise for an outstandingly lucid statement of the case against discrimination and the case for merit. The Supreme Court in ruling against Weber was, simply, wrong. Anyone who has deserved a reward, and had it denied for artificial reasons, knows there are only three universally accepted and agreed-upon standards for achievement: merit, merit, merit.

W. R. Sears
San Mateo, California

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