When the Court Makes Title VII Law and Policy: Disparate Impact and the Journey from Griggs to Ricci

St. John's Law Review Volume 89, Summer/Fall 2015, Numbers 2 & 3 Article 11 When the Court Makes Title VII Law and Policy: Disparate Impact and the Journey from Griggs to Ricci Ronald Turner Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview Part of the Civil Rights and Discrimination Commons Recommended Citation Ronald Turner (2015) "When the Court Makes Title VII Law and Policy: Disparate Impact and the Journey from Griggs to Ricci," St. John's Law Review: Vol. 89 : No. 2 , Article 11. Available at: https://scholarship.law.stjohns.edu/lawreview/vol89/iss2/11 This Symposium is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact . 37692-stj_89-2-3 Sheet No. 211 Side A 04/08/2016 13:04:55 FINAL_TURNER 3/29/2016 4:30 PM WHEN THE COURT MAKES TITLE VII LAW AND POLICY: DISPARATE IMPACT AND THE JOURNEY FROM GRIGGS TO RICCI RONALD TURNER† INTRODUCTION…........................................................................... 809 I.  GRIGGS V. DUKE POWER CO. ............................................... 813 A. The Case and the Court’s Decision.............................. 813 B. Post-Griggs Rulings ..................................................... 819 II.  FROM WARDS COVE TO THE CIVIL RIGHTS ACT OF 1991 .... 823 A. The Wards Cove Decision............................................. 824 B. The Civil Rights Act of 1991 ........................................ 830 III.  RICCI V. DESTEFANO ........................................................... 832 CONCLUSION.................................................................................. 839 INTRODUCTION In this “age of statutes,”1 the federal judiciary performs the critical role and function of interpreting and applying statutes in cases and controversies brought to the courts for adjudication and decision. The courts act within the separation-of-powers structure of the United States Constitution,2 a structure popularized prior to the nation’s founding by French lawyer and political philosopher Baron de Montesquieu.3 † Alumnae Law Center Professor of Law, University of Houston Law Center. J.D., The University of Pennsylvania Law School; B.A., Wilberforce University. The author acknowledges and is thankful for the research support provided by the Alumnae Law Center donors and the University of Houston Law Foundation. 1 See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 166 (1982). 2 “All legislative Powers . . . shall be vested in a Congress of the United States,” the “executive Power shall be vested in a President,” and the “judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. CONST. art. I, § 1; art. II, § 1; art. III, § 1. 3 See MONTESQUIEU, THE SPIRIT OF LAWS: A COMPENDIUM OF THE FIRST ENGLISH EDITION (David W. Carrithers ed., 1977). Bruce Ackerman has noted Justice Oliver Wendell Holmes’s observation that Montesquieu’s account of England’s “threefold division of power into legislative, executive and judicial—was a fiction invented by him, a fiction which misled Blackstone and Delome.” Bruce C M Y K 04/08/2016 13:04:55 809 37692-stj_89-2-3 Sheet No. 211 Side A  37692-stj_89-2-3 Sheet No. 211 Side B 04/08/2016 13:04:55 FINAL_TURNER 810 3/29/2016 4:30 PM ST. JOHN’S LAW REVIEW [Vol. 89:809 Concerned with “the distribution of powers among the three coequal [b]ranches,”4 the principle of separation of powers, implied in the Constitution’s governmental structure, “left to each [branch, the] power to exercise, in some respects, functions in their nature executive, legislative and judicial.”5 Under this view, “legislatures rather than courts should make law.”6 This notion is reflected in the axiom—indeed, the mantra—that courts must only interpret and not make law.7 Those who subscribe to this make-no-law position believe that courts should only identify and implement the legislative mandate and go no further, and courts should not “substitute their own policy preferences through the creation and application of public values canons for the preferences of Congress as articulated in the words and history of the statute.”8 Others reject the idea that judges merely find and announce, but do not and should not make, law. In the view of one jurist, this “is a fictitious and even a childish approach.”9 Judge Richard Posner has remarked that “[a]ppellate judges are occasional legislators”10 and that “judges make up much of the law that they are purporting to be merely applying.”11 That judges may make law is inevitable and necessary, for it is predictable that legislators cannot anticipate all of the postenactment issues and questions that will arise with regard to  04/08/2016 13:04:55 C M Y K 37692-stj_89-2-3 Sheet No. 211 Side B Ackerman, The Living Constitution, 120 HARV. L. REV. 1737, 1795 n.181 (2007) (quoting OLIVER WENDELL HOLMES, Montesquieu, in COLLECTED LEGAL PAPERS 250, 263 (1920)). 4 Touby v. United States, 500 U.S. 160, 167–68 (1991). 5 Mistretta v. United States, 488 U.S. 361, 386 (1989) (alteration in original) (quoting Myers v. United States, 272 U.S. 52, 84 (1926) (Brandeis, J., dissenting)) (internal quotation marks omitted). 6 Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold Story of Holy Trinity Church, 50 STAN. L. REV. 1833, 1861 (1998). 7 See Daniel B. Rodriguez, The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences, 45 VAND. L. REV. 743, 744 (1992). 8 Id. 9 Aharon Barak, Foreword: A Judge on Judging: The Role of a Supreme Court in a Democracy, 116 HARV. L. REV. 16, 23 (2002). 10 RICHARD A. POSNER, HOW JUDGES THINK 81 (2008) (emphasis omitted). 11 RICHARD A. POSNER, LAW, PRAGMATISM, AND DEMOCRACY 61 (2003); see also James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring) (“I am not so naive . . . as to be unaware that judges in a real sense ‘make’ law.”); Erwin N. Griswold, Cutting the Cloak to Fit the Cloth: An Approach to Problems in the Federal Courts, 32 CATH. U. L. REV. 787, 801 (1983) (“Everyone knows that judges do make law, and should make law. It is rather a question of how much law they should make.”). 37692-stj_89-2-3 Sheet No. 212 Side A 04/08/2016 13:04:55 FINAL_TURNER 2015] 3/29/2016 4:30 PM FROM GRIGGS TO RICCI 811 the operative meaning of a statutory provision in specific cases, circumstances, and contexts.12 Given this reality, courts will fill gaps in statutory text,13 making law in the process. This Article focuses on judicial lawmaking and policymaking in an important area of antidiscrimination law—Title VII of the Civil Rights Act of 1964’s regulatory regime.14 As (...truncated)