First Among Equals (30 page)

This policy would have been wildly unconstitutional had it been applied to the print media. In fact, five years later the Burger Court by an overwhelming vote struck down a Florida state statute requiring a “right to reply.” (
Miami Herald v. Tornillo
[1974]). Thus, if a newspaper were to criticize a public official, then the official had to be given column space to set forth his response. This seemed fair, but it was unconstitutional. The state legislature was purporting to tell the news media what it must print. This struck at the very core of the First Amendment's guarantee of a free press.

Similarly, the fairness doctrine at issue in the
Red Lion
case required broadcasters to publish what they did not want to put on the air. The Court, in an opinion by Justice Byron White, upheld the doctrine. Rejecting the First Amendment challenge on grounds that broadcasters are unlike the printed press (a controversial proposition in its own right, with the ever-increasing concentration of print media), the
Red Lion
Court wrote broadly about the respect and deference owed to an administrative agency charged with interpreting a statute passed by Congress. In the Supreme Court's view, courts should look to the agency's interpretation and accept it unless there were “compelling reasons” to suggest that the agency's view of the statute was wrong.

The
Red Lion
decision, handed down in the final year of the Warren Court, embraced a view of statutory interpretation that suggested a basic institutional limitation on the Court's ability to do its work. Congress, after all, had not simply passed a statute and left it free standing. Rather, it had determined to create an administrative agency, which, at least in theory, would develop its own experience and expertise operating under the statute(s). In fact, the agency itself may have been actively involved in the process of securing the passage of the particular piece of legislation. In that sense as well, in addition to practical operating experience, the agency was seen as knowing best.

The conceptual problem with this deferential approach lay in the way it tugged at our system of separated powers. Why should the agencies have the final say when the issue is one of interpreting statutes? That is ultimately the job of courts. And so it seemed to most judges by the 1980s, especially to adherents of the textualism espoused by Justice Scalia.

The Supreme Court shifted from being a court of deference to one of equal footing with “expert” agencies. Not surprisingly, the shift occurred as the Court's membership changed. In appointment after appointment, experienced judges came to the High Court. No longer were ex-politicians or executive branch officials—those more naturally inclined to heed the wishes of administrative agencies—the nominees of choice. Increasingly, judges, not politicians, were elevated to the nation's highest bench. The Court was becoming the lawyers' court it is today.

Judges felt they could interpret statutes as well as (or better than) executive officers could. There was no need, as a practical matter, to defer to the legal reading embraced by an agency. But more was at stake than issues of agency expertise versus judges asserting their own interpretive powers. Ultimately, the Court was saying, it is up to the judiciary to interpret the law. As a result, administrative agencies had to bow to the courts.

This rule was set forth in the latter years of the Burger Court in the 1984 case of
Chevron v. Natural Resources Defense Council
. As part of the Reagan administration's deregulatory effort, the Environmental Protection Agency had modified its interpretation of one provision of the Clean Air Act. In determining compliance with its administrative pollution regulation, the EPA—in a pro-business shift—changed its interpretation of the underlying federal statute and permitted industrial facilities to be considered as contained within a “bubble” encasing the entire facility. This permitted one smokestack or other pollution source to emit more pollutants than previously as long as the entire facility considered as a whole (or unit) did not increase the level of pollution.

The D.C. Circuit rejected the new EPA regulation. In an opinion by then Judge (and future justice) Ruth Bader Ginsburg, the court of appeals in Washington said that the law, while ambiguous, had to be interpreted in a way that maximized the overriding congressional goal of reducing air pollution.

But the Supreme Court rejected future-justice Ginsburg's approach. The agency could do what it did, said the Court, because the law was not clear and the interpretation embraced by the agency was a “reasonable” understanding of how it might carry out an unclear statute. But in giving the EPA its victory, the Court made clear that it was ultimately the role of the judiciary, not the agency, to be the key interpreter of federal law.

No longer was the culture of deference, highlighted fifteen years earlier in
Red Lion
, in the ascendancy. The
Chevron
Court reasoned from first principles. Instead of beginning, as the
Red Lion
Court had done, with the fact that an agency (there, the FCC) existed, that the agency had interpreted the statute in question, and that judges should respect the agency's presumably expert views, the
Chevron
Court began with the statute before it. The law, as passed by Congress, was equally binding on the judiciary and the agency. And the courts, as the final interpreters of federal law (including the Constitution), are not to “delegate” that task to a federal agency—even one filled with experts on the statute in question.

Textualism enabled the Court to embrace first principles. The statute in question had meaning, and that meaning was discernible through careful judicial study. However, if at the end of the interpretive exercise the Court concluded that the statute was ambiguous on the point in question, then and only then would the courts defer to the agency's interpretation—so long as the interpretation was “reasonable.”

Today it is the centrist justices who often hold the key to the result in a case of statutory interpretation. Consider the case arising from the Food and Drug Administration's effort during the Clinton administration to regulate tobacco. Tobacco had long been known to have adverse health effects, but no effort had been made by the FDA to regulate cigarettes (and smokeless tobacco).

This was an odd state of affairs. The basic statute had been on the books for decades, the health effects of smoking were known, and the regulatory agency had stayed on the sidelines. Now the agency set aside its prior legal positions and a new, contrary position was fashioned. It was taken through the customary process of giving notice of the proposed action and allowing interested parties to give comments to the agency.

With Justice O'Connor writing for a majority of five that included Justice Kennedy, the Court concluded that the Clinton administration had exceeded its powers under the key statute. Several elements sealed the legal fate of the anti-tobacco initiative. First, having surveyed with care the structure of the FDA's statute, the Court concluded that, if nicotine truly was what the FDA said it was, then tobacco products would have to be
removed
from the market. Assuming the validity of the FDA's findings concerning the health effects of tobacco, the Court concluded that the agency would not enjoy discretion to allow tobacco products to enter the marketplace without a “reasonable assurance of safety.” Yet, that assurance was impossible, given the FDA's conclusion about tobacco's health effects.

So, why not? Why not impose the regulatory death penalty on tobacco? Here, Justice O'Connor wrote, Congress had not been unaware of the issues. In fact, Congress “has foreclosed the removal of tobacco products from the market.” In the midst of the debate over tobacco, this long-standing statute loomed large: “The marketing of tobacco constitutes one of the greatest basic industries of the United States with ramifying activities which directly affect interstate and foreign commerce at every point, and stable conditions therein are necessary to the general welfare.” Congress, in short, had actually promoted the tobacco industry. Tobacco was seen by Congress as an important industry to the country. How, then, could the agency, with no intervening change of heart by Congress, decide suddenly to regulate the industry? And Justice O'Connor had said that the Court would look to common sense: “[W]e must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”

In that regard, another fact took on major significance:

Congress had specifically addressed the issue of tobacco and health through legislation on no fewer than six occasions going back to 1965. And what was Congress's reaction to growing scientific knowledge about the tobacco-health relationship? Justice O'Connor put it this way: In the face of information about tobacco's health effects, “[n]onetheless, Congress stopped well short of ordering a ban. Instead, it has generally regulated the labeling and advertisement of tobacco products…”. There was in the various statutes passed over the years a “collective premise,” namely that “cigarettes and smokeless tobacco will continue to be sold in the United States. A ban of tobacco products by the FDA would therefore plainly contradict congressional policy.”

Justice Breyer filed a dissent. Joined by Stevens, Souter, and Ginsburg, Breyer coupled the
literal language
of the statute with its
purposes
to conclude that the FDA was actually within its lawful jurisdiction in asserting power over tobacco. He married literal statutory text—tobacco products are “articles (other than food) intended to affect the structure or any function of the body”—with the congressional purpose of protecting public health. All nine justices thus were comfortable with the same overall approach to interpreting the law. They simply reached different results.

Why? The fundamental reason lay in what the five justices comprising the majority viewed as a huge anomaly. To them, it made little sense, in view of the entirety of the statute and the rich history of congressional legislation affecting tobacco, for the agency after all these years to bring tobacco under its regulatory reach. Looking to the literal language of the statute, in contrast, the dissenters concluded that nicotine fell within that language and that Congress's broad purposes in promoting public health supported the agency's action. Thus, while the majority, led by the centrist justices, thought the agency had overreached, the dissenters believed the agency was entitled to change its views, particularly in view of the additional information about nicotine that only recently had come to light. In any event, to the dissenters, the Clinton administration was within its rights in changing the government's view. Speaking through Justice Breyer, the dissenters stated: “Early administrations may have hesitated to assert jurisdiction…. Commissioners of the [Clinton] administration simply took a different regulatory attitude. Nothing in the law prevents the FDA from changing its policy for such reasons.” To the dissenters, that is what elections are all about. Agencies should be able to change their policy views, so long as the governing statute allows such flexibility.

Not surprisingly, the tobacco-regulation case generated far more controversy than most statutory interpretation cases. In the lion's share of such cases, there are few important issues dividing the justices. They also tend to agree on the need for the Court, in effect, to specify details of laws Congress frames in general terms.

The justices, including the textualists, do this quite often. They are “making law” in the same manner as common-law judges who develop the law governing contracts or torts. No more powerful example exists than the federal law governing discrimination. Here, over many years, the Court has quietly developed an elaborate body of law, first on race, national origin, and sex discrimination and, more recently, on age discrimination. None of the justices has seriously objected to this process.

Consider a 2000 case,
Reeves v. Sanderson Plumbing
. In that case Roger Reeves began working for Sanderson Plumbing, a manufacturer of toilet seats, at the tender age of seventeen. For forty long years, he labored for Sanderson, rising to the level of supervisor in what the company called the Hinge Room. Toilet seats, like doors, need hinges, and Sanderson's Hinge Room produced them. In the summer of 1995, the Hinge Room's top supervisor reported to Sanderson's senior management that production was down in that facility. The fifty-seven-year-old Reeves was blamed—and fired. He had failed, the company said, to discipline misbehaving employees, an especially serious failure for a company whose workforce is unionized. One senior manager testified that maintaining discipline is “’extremely important when you are dealing with a union’ because uneven enforcement across departments would keep the company ‘in grievance and arbitration cases, which are costly, all the time.’”

For his part, Reeves complained that this was all a ruse. Charging in a lawsuit that the company had discriminated against him in violation of the Age Discrimination in Employment Act, Reeves introduced evidence showing that he had accurately recorded the attendance and hours of his employees, that disciplining employees was not his responsibility, and that the owner's husband had demonstrated age-biased animus toward him.

The matter went to federal court in 1995. The backdrop of this workaday employment dispute was an elaborate framework devised not by Congress but by the Supreme Court to govern the trial of employment discrimination cases. For its part, Congress had passed a general antidiscrimination law. Like Title VII of the famous 1964 Civil Rights Act prohibiting race, national-origin, and gender-based discrimination, the Age Discrimination in Employment Act was worded in broad, general terms: The statute simply made it “unlawful for an employer … to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age.” With Congress having set forth this broad prohibition, it was then up to the courts to fashion specific rules of procedure. Congress was in charge of broad policy strategy, but left it up to the courts to come up with the tactics—the rules to govern these difficult cases. And the judges had done so, led by the Supreme Court in the 1970s in the then burgeoning area of race discrimination in employment. An elaborate procedure had been set up to this effect: The individual complaining of race-based discrimination must meet certain basic requirements, thereby making out a “prima facie” case of discrimination. Then the burden shifts to the employer to come up with a legitimate, nondiscriminatory reason for taking the adverse employment action. At that point, the burden returns to the complaining employee, who, to prevail, must show that the employer's stated reason masks the real one: discrimination. At the end of the day, the complaining party must show, by a preponderance of the evidence, that the employer
intentionally discriminated
against the plaintiff. The Supreme Court imported these procedures from race-discrimination cases to age-discrimination litigation, one of the fastest growing branches of civil rights litigation.