Article V, § 26 of the Missouri Constitution provides a
mandatory retirement age of 70 for most state judges. Petitioners,
judges subject to § 26, were appointed by the Governor and
subsequently were retained in office by means of retention
elections in which they ran unopposed, subject only to a "yes or
no" vote. Along with other state judges, they filed suit against
respondent Governor, alleging that § 26 violated the federal Age
Discrimination in Employment Act of 1967 (ADEA) and the Equal
Protection Clause of the Fourteenth Amendment. The District Court
granted the Governor's motion to dismiss, ruling that there was no
ADEA violation because Missouri's appointed judges are not covered
"employees" within the Act's terms, and that there was no equal
protection violation because there is a rational basis for the
distinction between judges and other state officials, to whom no
mandatory retirement age applies. The Court of Appeals
affirmed.
Held:
1. Missouri's mandatory retirement requirement for judges does
not violate the ADEA. Pp.
501 U. S.
456-470.
(a) The authority of a State's people to determine the
qualifications of their most important government officials lies
"at the heart of representative government," and is reserved under
the Tenth Amendment and guaranteed by the Guarantee Clause of
Article IV, § 4.
See, e.g., Sugarman v. Dougall,
413 U. S. 634,
413 U. S. 648.
Because congressional interference with the Missouri people's
decision to establish a qualification for their judges would upset
the usual constitutional balance of federal and state powers,
Congress must make its intention to do so "unmistakably clear in
the language of the statute."
See, e.g., Will v. Michigan Dept.
of State Police, 491 U. S. 58,
491 U. S. 65.
Moreover, where Congress acts pursuant to its Commerce Clause power
-- as it did in extending the ADEA to the States,
see EEOC v.
Wyoming, 460 U. S. 226 --
the authority of a State's people to determine their government
officials' qualifications may be inviolate. Application of the
Will plain statement rule to determine whether Congress
intended the ADEA to apply to state judges may help the Court to
avoid a potential constitutional problem. Pp.
501 U. S.
457-464.
Page 501 U. S. 453
(b) Appointed state judges are not covered by the ADEA. When it
extended the Act's substantive provisions to include the States as
employers, Congress redefined "employee" to exclude all elected and
most high-ranking state officials, including "appointee[s] on the
policymaking level." It is at least ambiguous whether a state judge
is such an appointee. Regardless of whether the judge might be
considered to make policy in the same sense as executive officials
and legislators, the judge certainly is in a position requiring the
exercise of discretion concerning issues of public importance, and
therefore might be said to be "on the policymaking level." Thus, it
cannot be concluded that the ADEA "makes unmistakably clear,"
Will, supra, 491 U.S. at
491 U. S. 65,
that appointed state judges are covered. Pp.
501 U. S.
464-467.
(c) Even if Congress acted pursuant to its enforcement powers
under § 5 of the Fourteenth Amendment, in addition to its Commerce
Clause powers, when it extended the ADEA to state employment, the
ambiguity in the Act's "employee" definition precludes this Court
from attributing to Congress an intent to cover appointed state
judges. Although, in
EEOC v. Wyoming, supra, 460 U.S. at
460 U. S. 243,
and n. 18, the Court noted that the federalism principles
constraining Congress' exercise of its Commerce Clause powers are
attenuated when it acts pursuant to its § 5 powers, the Court's
political function cases demonstrate that the Fourteenth Amendment
does not override all such principles,
see, e.g., Sugarman,
supra, 413 U.S. at
413 U. S. 648.
Of particular relevance here is
Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1,
451 U. S. 16, in
which the Court established that it will not attribute to Congress
an unstated intent to intrude on traditional state authority in the
exercise of its § 5 powers. That rule looks much like the plain
statement rule applied
supra, and pertains here in the
face of the statutory ambiguity. Pp.
501 U. S.
467-470.
2. Missouri's mandatory retirement provision does not violate
the Equal Protection Clause. Pp.
501 U. S.
470-473.
(a) Petitioners correctly assert their challenge at the rational
basis level, since age is not a suspect classification under the
Equal Protection Clause, and since they do not claim that they have
a fundamental interest in serving as judges.
See, e.g., Vance
v. Bradley, 440 U. S. 93,
440 U. S. 97. In
such circumstances, this Court will not overturn a state
constitutional provision unless varying treatment of different
groups is so unrelated to the achievement of any combination of
legitimate purposes that it can only be concluded that the people's
actions in approving it were irrational.
Ibid. P.
501 U. S.
470-471.
(b) The Missouri people rationally could conclude that the
threat of deterioration at age 70 is sufficiently great, and the
alternatives for removal from office sufficiently inadequate, that
they will require all judges to step aside at that age. Because it
is an unfortunate fact of life
Page 501 U. S. 454
that physical and mental capacity sometimes diminish with age,
the people may wish to replace some older judges in order to
satisfy the legitimate, indeed compelling, public interest in
maintaining a judiciary fully capable of performing judges'
demanding tasks. Although most judges probably do not suffer
significant deterioration at age 70, the people could reasonably
conceive the basis for the classification to be true.
See
Bradley, supra, 440 U.S. at
440 U. S. 111.
Voluntary retirement will not always be sufficient to serve
acceptably the goal of a fully functioning judiciary, nor may
impeachment, with its public humiliation and elaborate procedural
machinery. The election process may also be inadequate, since most
voters never observe judges in action nor read their opinions;
since state judges serve longer terms than other officials, making
them -- deliberately -- less dependent on the people's will; and
since infrequent retention elections may not serve as an adequate
check on judges whose performance is deficient. That other state
officials are not subject to mandatory retirement is rationally
explained by the facts that their performance is subject to greater
public scrutiny, that they are subject to more standard elections,
that deterioration in their performance is more readily
discernible, and that they are more easily removed than judges. Pp.
501 U. S.
471-473.
898 F.2d 598 (CA8 1990), affirmed.
O'CONNOR, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and SCALIA, KENNEDY, and SOUTER, JJ., joined, and
in Parts I and III of which WHITE and STEVENS, JJ., joined. WHITE,
J., filed an opinion concurring in part, dissenting in part, and
concurring in the judgment, in which STEVENS, J., joined,
post, p.
501 U. S. 474.
BLACKMUN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
post, p.
501 U. S.
486.
Page 501 U. S. 455
JUSTICE O'CONNOR delivered the opinion of the Court.
Article V, § 26 of the Missouri Constitution provides that
"[a]ll judges other than municipal judges shall retire at the age
of seventy years." We consider whether this mandatory retirement
provision violates the federal Age Discrimination in Employment Act
of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. §§ 621-634, and
whether it comports with the federal constitutional prescription of
equal protection of the laws.
I
Petitioners are Missouri state judges. Judge Ellis Gregory, Jr.,
is an associate circuit judge for the Twenty-First Judicial
Circuit. Judge Anthony P. Nugent, Jr., is a judge of the Missouri
Court of Appeals, Western District. Both are subject to the § 26
mandatory retirement provision. Petitioners were appointed to
office by the Governor of Missouri, pursuant to the Missouri
Non-Partisan Court Plan, Mo.Const., Art. V, §§ 25(a)-25(g). Each
has, since his appointment, been retained in office by means of a
retention election in which the judge ran unopposed, subject only
to a "yes or no" vote.
See Mo. Const., Art. V, §
25(c)(1).
Page 501 U. S. 456
Petitioners and two other state judges filed suit against John
D. Ashcroft, the Governor of Missouri, in United States District
Court for the Eastern District of Missouri, challenging the
validity of the mandatory retirement provision. The judges alleged
that the provision violated both the ADEA and the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution. The Governor filed a motion to dismiss.
The District Court granted the motion, holding that Missouri's
appointed judges are not protected by the ADEA, because they are
"appointees . . .
on a policymaking level,'" and therefore are
excluded from the Act's definition of "employee." App. to Pet. for
Cert. 22. The court held also that the mandatory retirement
provision does not violate the Equal Protection Clause, because
there is a rational basis for the distinction between judges and
other state officials to whom no mandatory retirement age applies.
Id. at 23.
The United States Court of Appeals for the Eighth Circuit
affirmed the dismissal. 898 F.2d 598 (1990). That court also held
that appointed judges are "
appointee[s] on the policymaking
level,'" and are therefore not covered under the ADEA. Id.
at 604. The Court of Appeals held as well that Missouri had a
rational basis for distinguishing judges who had reached the age of
70 from those who had not. Id. at 606.
We granted certiorari on both the ADEA and equal protection
questions, 498 U.S. 979 (1990), and now affirm.
II
The ADEA makes it unlawful for an "employer" "to discharge any
individual" who is at least 40 years old "because of such
individual's age." 29 U.S.C. §§ 623(a), 631(a). The term "employer"
is defined to include "a State or political subdivision of a
State." 29 U.S.C. § 630(b)(2). Petitioners work for the State of
Missouri. They contend that the Missouri
Page 501 U. S. 457
mandatory retirement requirement for judges violates the
ADEA.
A
As every schoolchild learns, our Constitution establishes a
system of dual sovereignty between the States and the Federal
Government. This Court also has recognized this fundamental
principle. In
Tafflin v. Levitt, 493 U.
S. 455,
493 U. S. 458
(1990),
"[w]e beg[a]n with the axiom that, under our federal system, the
States possess sovereignty concurrent with that of the Federal
Government, subject only to limitations imposed by the Supremacy
Clause."
Over a hundred years ago, the Court described the constitutional
scheme of dual sovereigns:
"'[T]he people of each State compose a State, having its own
government, and endowed with all the functions essential to
separate and independent existence,' . . . '[W]ithout the States in
union, there could be no such political body as the United States.'
Not only, therefore, can there be no loss of separate and
independent autonomy to the States, through their union under the
Constitution, but it may be not unreasonably said that the
preservation of the States, and the maintenance of their
governments, are as much within the design and care of the
Constitution as the preservation of the Union and the maintenance
of the National government. The Constitution, in all its
provisions, looks to an indestructible Union, composed of
indestructible States."
Texas v.
White, 7 Wall. 700,
74 U. S. 725
(1869), quoting
Lane County v.
Oregon, 7 Wall. 71,
74 U. S. 76
(1869).
The Constitution created a Federal Government of limited
powers.
"The powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to
the States respectively, or to the people."
U.S.Const., Amdt. 10. The States thus retain substantial
sovereign authority under our constitutional system. As James
Madison put it:
Page 501 U. S. 458
"The powers delegated by the proposed Constitution to the
federal government are few and defined. Those which are to remain
in the State governments are numerous and indefinite. . . . The
powers reserved to the several States will extend to all the
objects which, in the ordinary course of affairs, concern the
lives, liberties, and properties of the people, and the internal
order, improvement, and prosperity of the State."
The Federalist No. 45, pp. 292-293 (C. Rossiter ed.1961) (J.
Madison).
This federalist structure of joint sovereigns preserves to the
people numerous advantages. It assures a decentralized government
that will be more sensitive to the diverse needs of a heterogenous
society; it increases opportunity for citizen involvement in
democratic processes; it allows for more innovation and
experimentation in government; and it makes government more
responsive by putting the States in competition for a mobile
citizenry.
See generally McConnell, Federalism: Evaluating
the Founders' Design, 54 U.Chi.L.Rev. 1484, 1491-1511 (1987);
Merritt, The Guarantee Clause and State Autonomy: Federalism for a
Third Century, 88 Colum.L.Rev. 1, 3-10 (1988).
Perhaps the principal benefit of the federalist system is a
check on abuses of government power.
"The 'constitutionally mandated balance of power' between the
States and the Federal Government was adopted by the Framers to
ensure the protection of 'our fundamental liberties.'"
Atascadero State Hospital v. Scanlon, 473 U.
S. 234,
473 U. S. 242
(1985), quoting
Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528,
469 U. S. 572
(1985) (Powell, J., dissenting). Just as the separation and
independence of the coordinate Branches of the Federal Government
serves to prevent the accumulation of excessive power in any one
Branch, a healthy balance of power between the States and the
Federal Government will reduce the risk of tyranny and abuse from
either front. Alexander Hamilton explained to the people of New
York, perhaps optimistically, that the new federalist system
would
Page 501 U. S. 459
suppress completely "the attempts of the government to establish
a tyranny":
"[I]n a confederacy the people, without exaggeration, may be
said to be entirely the masters of their own fate. Power being
almost always the rival of power, the general government will at
all times stand ready to check usurpations of the state
governments, and these will have the same disposition towards the
general government. The people, by throwing themselves into either
scale, will infallibly make it preponderate. If their rights are
invaded by either, they can make use of the other as the instrument
of redress."
The Federalist No. 28, pp. 180-181 (A. Hamilton). James Madison
made much the same point:
"In a single republic, all the power surrendered by the people
is submitted to the administration of a single government; and the
usurpations are guarded against by a division of the government
into distinct and separate departments. In the compound republic of
America, the power surrendered by the people is first divided
between two distinct governments, and then the portion allotted to
each subdivided among distinct and separate departments. Hence a
double security arises to the rights of the people. The different
governments will control each other, at the same time that each
will be controlled by itself."
The Federalist No. 51, p. 323 (J. Madison).
One fairly can dispute whether our federalist system has been
quite as successful in checking government abuse as Hamilton
promised, but there is no doubt about the design. If this "double
security" is to be effective, there must be a proper balance
between the States and the Federal Government. These twin powers
will act as mutual restraints only if both are credible. In the
tension between federal and state power lies the promise of
liberty.
Page 501 U. S. 460
The Federal Government holds a decided advantage in this
delicate balance: the Supremacy Clause. U.S.Const., Art. VI. As
long as it is acting within the powers granted it under the
Constitution, Congress may impose its will on the States. Congress
may legislate in areas traditionally regulated by the States. This
is an extraordinary power in a federalist system. It is a power
that we must assume Congress does not exercise lightly.
The present case concerns a state constitutional provision
through which the people of Missouri establish a qualification for
those who sit as their judges. This provision goes beyond an area
traditionally regulated by the States; it is a decision of the most
fundamental sort for a sovereign entity. Through the structure of
its government, and the character of those who exercise government
authority, a State defines itself as a sovereign.
"It is obviously essential to the independence of the States,
and to their peace and tranquility, that their power to prescribe
the qualifications of their own officers . . . should be exclusive,
and free from external interference, except so far as plainly
provided by the Constitution of the United States."
Taylor v. Beckham, 178 U. S. 548,
178 U. S.
570-571 (1900).
See also Boyd v. Thayer,
143 U. S. 135,
143 U. S. 161
(1892) ("Each State has the power to prescribe the qualifications
of its officers and the manner in which they shall be chosen").
Congressional interference with this decision of the people of
Missouri, defining their constitutional officers, would upset the
usual constitutional balance of federal and state powers. For this
reason, "it is incumbent upon the federal courts to be certain of
Congress' intent before finding that federal law overrides" this
balance.
Atascadero, supra, 473 U.S. at
473 U. S. 243.
We explained recently:
"[I]f Congress intends to alter the 'usual constitutional
balance between the States and the Federal Government,' it must
make its intention to do so 'unmistakably clear in the language of
the statute.'
Atascadero
Page 501 U. S. 461
State Hospital v. Scanlon, 473 U. S.
234,
473 U. S. 242 (1985);
see also Pennhurst State School and Hospital v. Halderman,
465 U. S.
89,
465 U. S. 99 (1984).
Atascadero was an Eleventh Amendment case, but a similar
approach is applied in other contexts. Congress should make its
intention 'clear and manifest' if it intends to preempt the
historic powers of the States,
Rice v. Santa Fe Elevator
Corp., 331 U. S. 218,
331 U. S.
230 (1947). . . ."
"In traditionally sensitive areas, such as legislation affecting
the federal balance, the requirement of clear statement assures
that the legislature has, in fact, faced, and intended to bring
into issue, the critical matters involved in the judicial
decision."
"
United States v. Bass, 404 U. S.
336,
404 U. S. 349 (1971)."
Will v. Michigan Dept. of State Police, 491 U. S.
58,
491 U. S. 65
(1989). This plain statement rule is nothing more than an
acknowledgement that the States retain substantial sovereign powers
under our constitutional scheme, powers with which Congress does
not readily interfere.
In a recent line of authority, we have acknowledged the unique
nature of state decisions that "go to the heart of representative
government."
Sugarman v. Dougall, 413 U.
S. 634,
413 U. S. 647
(1973).
Sugarman was the first in a series of cases to
consider the restrictions imposed by the Equal Protection Clause of
the Fourteenth Amendment on the ability of state and local
governments to prohibit aliens from public employment. In that
case, the Court struck down under the Equal Protection Clause a New
York City law that provided a flat ban against the employment of
aliens in a wide variety of city jobs.
Ibid.
The Court did not hold, however, that alienage could never
justify exclusion from public employment. We recognized explicitly
the States' constitutional power to establish the qualifications
for those who would govern:
"Just as 'the Framers of the Constitution intended the States to
keep for themselves, as provided in the Tenth
Page 501 U. S. 462
Amendment, the power to regulate elections,'
Oregon v.
Mitchell, 400 U. S. 112,
400 U. S.
124-125 (1970) (footnote omitted) (opinion of Black,
J.);
see id. at
400 U. S. 201 (opinion of
Harlan, J.),
and id. at
400 U. S.
293-294 (opinion of Stewart, J.), '[e]ach State has the
power to prescribe the qualifications of its officers and the
manner in which they shall be chosen.'
Boyd v. Thayer,
143 U. S.
135,
143 U. S. 161 (1892).
See Luther v.
Borden, 7 How. 1,
48 U. S.
41 (1849);
Pope v. Williams, 193 U. S.
621,
193 U. S. 632-633 (1904).
Such power inheres in the State by virtue of its obligation,
already noted above, 'to preserve the basic conception of a
political community.'
Dunn v. Blumstein, 405 U.S.
[330,
405 U. S. 344 (1972)]. And
this power and responsibility of the State applies, not only to the
qualifications of voters, but also to persons holding state
elective and important nonelective executive, legislative, and
judicial positions, for officers who participate directly in the
formulation, execution, or review of broad public policy perform
functions that go to the heart of representative government."
Ibid.
We explained that, while the Equal Protection Clause provides a
check on such state authority, "our scrutiny will not be so
demanding where we deal with matters resting firmly within a
State's constitutional prerogatives."
Id. at
413 U. S. 648.
This rule
"is no more than . . . a recognition of a State's constitutional
responsibility for the establishment and operation of its own
government, as well as the qualifications of an appropriately
designated class of public office holders. U.S.Const. Art. IV, § 4;
U.S.Const. Amdt. X;
Luther v. Borden, supra; see In re
Duncan, 139 U. S. 449,
139 U. S.
461 (1891)."
Ibid.
In several subsequent cases, we have applied the "political
function" exception to laws through which States exclude aliens
from positions "intimately related to the process of democratic
self-government."
See Bernal v. Fainter, 467 U.
S. 216,
467 U. S. 220
(1984).
See also Nyquist v. Mauclet, 432 U. S.
1,
432 U. S. 11
(1977);
Foley v. Connelie, 435 U.
S. 291,
435 U. S.
295-296
Page 501 U. S. 463
(1978);
Ambach v. Norwick, 441 U. S.
68,
441 U. S. 73-74
(1979);
Cabell v. Chavez-Salido, 454 U.
S. 432,
454 U. S.
439-441 (1982).
"[W]e have . . . lowered our standard of review when evaluating
the validity of exclusions that entrust only to citizens important
elective and nonelective positions whose operations 'go to the
heart of representative government.'"
Bernal, 467 U.S. at
467 U. S. 221
(citations omitted).
These cases stand in recognition of the authority of the people
of the States to determine the qualifications of their most
important government officials.{
*} It is an
authority that lies at "
the heart of representative
government.'" Ibid. It is a power reserved to the States
under the Tenth Amendment and guaranteed them by that provision of
the Constitution under which the United States "guarantee[s] to
every State in this Union a Republican Form of Government."
U.S.Const., Art. IV, § 4. See Sugarman, supra, 413 U.S. at
413 U. S. 648
(citing the Guarantee Clause and the Tenth Amendment). See
also Merritt, 88 Colum.L.Rev. at 50-55.
The authority of the people of the States to determine the
qualifications of their government officials is, of course, not
without limit. Other constitutional provisions, most notably the
Fourteenth Amendment, proscribe certain qualifications; our review
of citizenship requirements under the political function exception
is less exacting, but it is not absent.
Page 501 U. S. 464
Here, we must decide what Congress did in extending the ADEA to
the States, pursuant to its powers under the Commerce Clause.
See EEOC v. Wyoming, 460 U. S. 226
(1983) (the extension of the ADEA to employment by state and local
governments was a valid exercise of Congress' powers under the
Commerce Clause). As against Congress' powers "[t]o regulate
Commerce . . . among the several States," U.S.Const., Art. I, § 8,
cl. 3, the authority of the people of the States to determine the
qualifications of their government officials may be inviolate.
We are constrained in our ability to consider the limits that
the state-federal balance places on Congress' powers under the
Commerce Clause.
See Garcia v. San Antonio Metropolitan Transit
Authority, 469 U. S. 528
(1985) (declining to review limitations placed on Congress'
Commerce Clause powers by our federal system). But there is no need
to do so if we hold that the ADEA does not apply to state judges.
Application of the plain statement rule thus may avoid a potential
constitutional problem. Indeed, inasmuch as this Court, in
Garcia, has left primarily to the political process the
protection of the States against intrusive exercises of Congress'
Commerce Clause powers, we must be absolutely certain that Congress
intended such an exercise.
"[T]o give the state-displacing weight of federal law to mere
congressional
ambiguity would evade the very procedure for
lawmaking on which
Garcia relied to protect states'
interests."
L. Tribe, American Constitutional Law § 6-25, p. 480 (2d
ed.1988).
B
In 1974, Congress extended the substantive provisions of the
ADEA to include the States as employers. Pub.L. 93-259, § 28(a), 88
Stat. 74; 29 U.S.C. § 630(b)(2). At the same time, Congress amended
the definition of "employee" to exclude all elected and most
high-ranking government officials. Under the Act, as amended:
Page 501 U. S. 465
"The term 'employee' means an individual employed by any
employer except that the term 'employee' shall not include any
person elected to public office in any State or political
subdivision of any State by the qualified voters thereof, or any
person chosen by such officer to be on such officer's personal
staff, or an appointee on the policymaking level or an immediate
adviser with respect to the exercise of the constitutional or legal
powers of the office."
29 U.S.C. § 630(f).
Governor Ashcroft contends that the § 630(f) exclusion of
certain public officials also excludes judges, like petitioners,
who are appointed to office by the Governor and are then subject to
retention election. The Governor points to two passages in §
630(f). First, he argues, these judges are selected by an elected
official and, because they make policy, are "appointee[s] on the
policymaking level."
Petitioners counter that judges merely resolve factual disputes
and decide questions of law; they do not make policy. Moreover,
petitioners point out that the policymaking-level exception is part
of a trilogy, tied closely to the elected official exception. Thus,
the Act excepts elected officials and: (1) "any person chosen by
such officer to be on such officer's personal staff"; (2) "an
appointee on the policymaking level"; and (3) "an immediate advisor
with respect to the constitutional or legal powers of the office."
Applying the maxim of statutory construction
noscitur a
sociis -- that a word is known by the company it keeps --
petitioners argue that, since (1) and (3) refer only to those in
close working relationships with elected officials, so too must
(2). Even if it can be said that judges may make policy,
petitioners contend, they do not do so at the behest of an elected
official.
Governor Ashcroft relies on the plain language of the statute:
it exempts persons appointed "at the policymaking level." The
Governor argues that state judges, in fashioning and applying the
common law, make policy. Missouri is a
Page 501 U. S. 466
common law state.
See Mo.Rev.Stat. § 1.010 (1986)
(adopting "[t]he common law of England" consistent with federal and
state law). The common law, unlike a constitution or statute,
provides no definitive text; it is to be derived from the
interstices of prior opinions and a well-considered judgment of
what is best for the community. As Justice Holmes put it:
"The very considerations which judges most rarely mention, and
always with an apology, are the secret root from which the law
draws all the juices of life. I mean, of course, considerations of
what is expedient for the community concerned. Every important
principle which is developed by litigation is, in fact and at
bottom, the result of more or less definitely understood views of
public policy; most generally, to be sure, under our practice and
traditions, the unconscious result of instinctive preferences and
inarticulate convictions, but nonetheless traceable to views of
public policy in the last analysis."
O. Holmes, The Common Law 336 (1881).
Governor Ashcroft contends that Missouri judges make policy in
other ways as well. The Missouri Supreme Court and Courts of
Appeals have supervisory authority over inferior courts. Mo.Const.,
Art. V, § 4. The Missouri Supreme Court has the constitutional duty
to establish rules of practice and procedure for the Missouri court
system, and inferior courts exercise policy judgment in
establishing local rules of practice.
See Mo.Const., Art.
V, § 5. The state courts have supervisory powers over the state
bar, with the Missouri Supreme Court given the authority to develop
disciplinary rules.
See Mo.Rev.Stat. §§ 484.040,
484.200-484.270 (1986); Rules Governing the Missouri Bar and the
Judiciary (1991).
The Governor stresses judges' policymaking responsibilities, but
it is far from plain that the statutory exception requires that
judges actually make policy. The statute refers to appointees "on
the policymaking level," not to appointees "who make policy." It
may be sufficient that the appointee
Page 501 U. S. 467
is in a position requiring the exercise of discretion concerning
issues of public importance. This certainly describes the bench,
regardless of whether judges might be considered policymakers in
the same sense as the executive or legislature.
Nonetheless, "appointee at the policymaking level," particularly
in the context of the other exceptions that surround it, is an odd
way for Congress to exclude judges; a plain statement that judges
are not "employees" would seem the most efficient phrasing. But in
this case, we are not looking for a plain statement that judges are
excluded. We will not read the ADEA to cover state judges unless
Congress has made it clear that judges are
included. This
does not mean that the Act must mention judges explicitly, though
it does not.
Cf. Dellmuth v. Muth, 491 U.
S. 223,
491 U. S. 233
(SCALIA, J., concurring). Rather, it must be plain to anyone
reading the Act that it covers judges. In the context of a statute
that plainly excludes most important state public officials,
"appointee on the policymaking level" is sufficiently broad that we
cannot conclude that the statute plainly covers appointed state
judges. Therefore, it does not.
The ADEA plainly covers all state employees except those
excluded by one of the exceptions. Where it is unambiguous that an
employee does not fall within one of the exceptions, the Act states
plainly and unequivocally that the employee is included. It is at
least ambiguous whether a state judge is an "appointee on the
policymaking level."
Governor Ashcroft points also to the "person elected to public
office" exception. He contends that, because petitioners --
although appointed to office initially -- are subject to retention
election, they are "elected to public office" under the ADEA.
Because we conclude that petitioners fall presumptively under the
policymaking-level exception, we need not answer this question.
C
The extension of the ADEA to employment by state and local
governments was a valid exercise of Congress' powers
Page 501 U. S. 468
under the Commerce Clause.
EEOC v. Wyoming,
460 U. S. 226
(1983). In
Wyoming, we reserved the questions whether
Congress might also have passed the ADEA extension pursuant to its
powers under § 5 of the Fourteenth Amendment, and whether the
extension would have been a valid exercise of that power.
Id. at
460 U. S. 243,
and n. 18. We noted, however, that the principles of federalism
that constrain Congress' exercise of its Commerce Clause powers are
attenuated when Congress acts pursuant to its powers to enforce the
Civil War Amendments.
Id. at
460 U. S. 243,
and n. 18, citing
City of Rome v. United States,
446 U. S. 156,
446 U. S. 179
(1980). This is because those "Amendments were specifically
designed as an expansion of federal power and an intrusion on state
sovereignty."
City of Rome, supra, at
446 U. S. 179.
One might argue, therefore, that, if Congress passed the ADEA
extension under its § 5 powers, the concerns about federal
intrusion into state government that compel the result in this case
might carry less weight.
By its terms, the Fourteenth Amendment contemplates interference
with state authority: "No State shall . . . deny to any person
within its jurisdiction the equal protection of the laws."
U.S.Const., Amdt. 14. But this Court has never held that the
Amendment may be applied in complete disregard for a State's
constitutional powers. Rather, the Court has recognized that the
States' power to define the qualifications of their officeholders
has force even as against the proscriptions of the Fourteenth
Amendment.
We return to the political function cases. In
Sugarman,
the Court noted that
"aliens as a class "are a prime example of a
discrete and
insular' minority (see United States v. Carolene Products Co.,
304 U. S. 144,
304 U. S.
152-153, n. 4 (1938))," and that classifications based
on alienage are "subject to close judicial scrutiny.""
413 U.S. at
413 U. S. 642,
quoting
Graham v. Richardson, 403 U.
S. 365,
403 U. S. 372
(1971). The
Sugarman Court held that New York City had
insufficient interest in preventing aliens from holding a broad
category of public
Page 501 U. S. 469
jobs to justify the blanket prohibition. 413 U.S. at
413 U. S. 647.
At the same time, the Court established the rule that scrutiny
under the Equal Protection Clause "will not be so demanding where
we deal with matters resting firmly within a State's constitutional
prerogatives."
Id. at
413 U. S. 648.
Later cases have reaffirmed this practice.
See Foley v.
Connelie, 435 U. S. 291
(1978);
Ambach v. Norwick, 441 U. S.
68 (1979);
Cabell v. Chavez-Salido,
454 U. S. 432
(1982). These cases demonstrate that the Fourteenth Amendment does
not override all principles of federalism.
Of particular relevance here is
Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1 (1981).
The question in that case was whether Congress, in passing a
section of the Developmentally Disabled Assistance and Bill of
Rights Act, 42 U.S.C. § 6010 (1982 ed.), intended to place an
obligation on the States to provide certain kinds of treatment to
the disabled. Respondent Halderman argued that Congress passed §
6010 pursuant to § 5 of the Fourteenth Amendment, and therefore
that it was mandatory on the States, regardless of whether they
received federal funds. Petitioner and the United States, as
respondent, argued that, in passing § 6010, Congress acted pursuant
to its spending power alone. Consequently, § 6010 applied only to
States accepting federal funds under the Act.
The Court was required to consider the "appropriate test for
determining when Congress intends to enforce" the guarantees of the
Fourteenth Amendment. 451 U.S. at
451 U. S. 16. We
adopted a rule fully cognizant of the traditional power of the
States:
"Because such legislation imposes congressional policy on a
State involuntarily, and because it often intrudes on traditional
state authority, we should not quickly attribute to Congress an
unstated intent to act under its authority to enforce the
Fourteenth Amendment."
Ibid. Because Congress nowhere stated its intent to
impose mandatory obligations on the States under its § 5 powers, we
concluded that Congress did not do so.
Ibid.
Page 501 U. S. 470
The
Pennhurst rule looks much like the plain statement
rule we apply today. In
EEOC v. Wyoming, the Court
explained that
Pennhurst established a rule of statutory
construction to be applied where statutory intent is ambiguous. 460
U.S. at
460 U. S. 244,
n. 18. In light of the ADEA's clear exclusion of most important
public officials, it is at least ambiguous whether Congress
intended that appointed judges nonetheless be included. In the face
of such ambiguity, we will not attribute to Congress an intent to
intrude on state governmental functions regardless of whether
Congress acted pursuant to its Commerce Clause powers or § 5 of the
Fourteenth Amendment.
III
Petitioners argue that, even if they are not covered by the
ADEA, the Missouri Constitution's mandatory retirement provision
for judges violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. Petitioners contend
that there is no rational basis for the decision of the people of
Missouri to preclude those age 70 and over from serving as their
judges. They claim that the mandatory retirement provision makes
two irrational distinctions: between judges who have reached age 70
and younger judges, and between judges 70 and over and other state
employees of the same age who are not subject to mandatory
retirement.
Petitioners are correct to assert their challenge at the level
of rational basis. This Court has said repeatedly that age is not a
suspect classification under the Equal Protection Clause.
See
Massachusetts Bd. of Retirement v. Murgia, 427 U.
S. 307,
427 U. S.
313-314 (1976);
Vance v. Bradley, 440 U. S.
93,
440 U. S. 97
(1979);
Cleburne v. Cleburne Living Center, Inc.,
473 U. S. 432,
473 U. S. 441
(1985). Nor do petitioners claim that they have a fundamental
interest in serving as judges. The State need therefore assert only
a rational basis for its age classification.
See Murgia,
supra, 427 U.S. at
427 U. S. 314;
Bradley, 440 U.S. at
440 U. S. 97. In
cases where a classification burdens neither a suspect
Page 501 U. S. 471
group nor a fundamental interest, "courts are quite reluctant to
overturn governmental action on the ground that it denies equal
protection of the laws."
Ibid. In this case, we are
dealing not merely with government action, but with a state
constitutional provision approved by the people of Missouri as a
whole. This constitutional provision reflects both the considered
judgment of the state legislature that proposed it and that of the
citizens of Missouri who voted for it.
See 1976 Mo.Laws
812 (proposing the mandatory retirement provision of § 26);
Mo.Const., Art. XII, §§ 2(a), 2(b) (describing the amendment
process).
"[W]e will not overturn such a [law] unless the varying
treatment of different groups or persons is so unrelated to the
achievement of any combination of legitimate purposes that we can
only conclude that the [people's] actions were irrational."
Bradley, supra, at
440 U. S. 97.
See also Pennell v. San Jose, 485 U. S.
1,
485 U. S. 14
(1988).
Governor Ashcroft cites
O'Neil v. Baine, 568 S.W.2d
761 (Mo.1978) (en banc) as a fruitful source of rational bases.
In
O'Neil, the Missouri Supreme Court -- to whom Missouri
Constitution Article V, § 26, applies -- considered an equal
protection challenge to a state statute that established a
mandatory retirement age of 70 for state magistrate and probate
judges. The court upheld the statute, declaring numerous legitimate
state objectives it served:
"[t]he statute draws a line at a certain age which attempts to
uphold the high competency for judicial posts and which fulfills a
societal demand for the highest caliber of judges in the
system;"
"the statute . . . draws a legitimate line to avoid the tedious
and often perplexing decisions to determine which judges after a
certain age are physically and mentally qualified and those who are
not;"
"mandatory retirement increases the opportunity for qualified
persons . . . to share in the judiciary and permits an orderly
attrition through retirement;"
"such a mandatory provision also assures predictability and ease
in establishing and administering judges' pension plans."
Id. at 766-767. Any one of these explanations is
sufficient to rebut the claim
Page 501 U. S. 472
that
"the varying treatment of different groups or persons [in § 26]
is so unrelated to the achievement of any combination of legitimate
purposes that we can only conclude that the [people's] actions were
irrational."
Bradley, supra, 440 U.S. at
440 U. S.
97.
The people of Missouri have a legitimate, indeed compelling,
interest in maintaining a judiciary fully capable of performing the
demanding tasks that judges must perform. It is an unfortunate fact
of life that physical and mental capacity sometimes diminish with
age.
See Bradley, supra, at
440 U. S.
111-112;
Murgia, supra, 427 U.S. at
427 U. S. 315.
The people may therefore wish to replace some older judges.
Voluntary retirement will not always be sufficient. Nor may
impeachment -- with its public humiliation and elaborate procedural
machinery -- serve acceptably the goal of a fully functioning
judiciary.
See Mo.Const., Art. VII, §§ 1-3.
The election process may also be inadequate. Whereas the
electorate would be expected to discover if their governor or state
legislator were not performing adequately and vote the official out
of office, the same may not be true of judges. Most voters never
observe state judges in action, nor read judicial opinions. State
judges also serve longer terms of office than other public
officials, making them -- deliberately -- less dependent on the
will of the people.
Compare Mo.Const., Art. V, § 19
(Supreme Court Justices and Court of Appeals judges serve 12-year
terms; Circuit Court judges six years)
with Mo.Const.,
Art. IV, § 17 (governor, lieutenant governor, secretary of state,
state treasurer, and attorney general serve 4-year terms)
and Mo.Const., Art. III, § 11 (state representatives serve
2-year terms; state senators four years). Most of these judges do
not run in ordinary elections.
See Mo.Const., Art. V, §
25(a). The people of Missouri rationally could conclude that
retention elections -- in which state judges run unopposed at
relatively long intervals -- do not serve as an adequate check on
judges whose performance is deficient. Mandatory retirement is a
reasonable response to this dilemma.
Page 501 U. S. 473
This is also a rational explanation for the fact that state
judges are subject to a mandatory retirement provision, while other
state officials -- whose performance is subject to greater public
scrutiny, and who are subject to more standard elections -- are
not. Judges' general lack of accountability explains also the
distinction between judges and other state employees, in whom a
deterioration in performance is more readily discernible, and who
are more easily removed.
The Missouri mandatory retirement provision, like all legal
classifications, is founded on a generalization. It is far from
true that all judges suffer significant deterioration in
performance at age 70. It is probably not true that most do. It may
not be true at all. But a State "
does not violate the Equal
Protection Clause merely because the classifications made by its
laws are imperfect.'" Murgia, supra, at 427 U. S. 316
quoting Dandridge v. Williams, 397 U.
S. 471, 397 U. S. 485
(1970).
"In an equal protection case of this type . . . those
challenging the . . . judgment [of the people] must convince the
court that the . . . facts on which the classification is
apparently based could not reasonably be conceived to be true by
the . . . decisionmaker."
Bradley, 440 U.S. at
440 U. S. 111.
The people of Missouri rationally could conclude that the threat of
deterioration at age 70 is sufficiently great, and the alternatives
for removal sufficiently inadequate, that they will require all
judges to step aside at age 70. This classification does not
violate the Equal Protection Clause.
IV
The people of Missouri have established a qualification for
those who would be their judges. It is their prerogative as
citizens of a sovereign State to do so. Neither the ADEA nor the
Equal Protection Clause prohibits the choice they have made.
Accordingly, the judgment of the Court of Appeals is
Affirmed.
Page 501 U. S. 474
* JUSTICE WHITE believes that the "political function" cases are
inapposite because they involve limitations on "
judicially
created scrutiny" rather than "
Congress' legislative
authority," which is at issue here.
Post at
501 U. S. 477.
He apparently suggests that Congress has greater authority to
interfere with state sovereignty when acting pursuant to its
Commerce Clause powers than this Court does when applying the
Fourteenth Amendment. Elsewhere in his opinion, JUSTICE WHITE
emphasizes that the Fourteenth Amendment was designed as an
intrusion on state sovereignty.
See post at
501 U. S. 480.
That being the case, our diminished scrutiny of state laws in the
"political function" cases, brought under the Fourteenth Amendment,
argues strongly for special care when interpreting alleged
congressional intrusions into state sovereignty under the Commerce
Clause.
JUSTICE WHITE, with whom JUSTICE STEVENS joins, concurring in
part, dissenting in part, and concurring in the judgment.
I agree with the majority that neither the ADEA nor the Equal
Protection Clause prohibits Missouri's mandatory retirement
provision as applied to petitioners, and I therefore concur in the
judgment and in Parts I and III of the majority's opinion. I cannot
agree, however, with the majority's reasoning in
501 U.
S. which ignores several areas of well-established
precedent and announces a rule that is likely to prove both unwise
and infeasible. That the majority's analysis in Part II is
completely unnecessary to the proper resolution of this case makes
it all the more remarkable.
I
In addition to petitioners' equal protection claim, we granted
certiorari to decide the following question:
"Whether appointed Missouri state court judges are 'appointee[s]
on the policymaking level' within the meaning of the Age
Discrimination in Employment Act ('ADEA'), 28 U.S.C. §§ 621-34
(1982 & Supp.V 1987), and therefore exempted from the ADEA's
general prohibition of mandatory retirement, and thus subject to
the mandatory retirement provision of Article V, Section 26 of the
Missouri Constitution."
Pet. for Cert. i.
The majority, however, chooses not to resolve that issue of
statutory construction. Instead, it holds that, whether or not the
ADEA can fairly be read to exclude state judges from its scope,
"[w]e will not read the ADEA to cover state judges unless Congress
has made it clear that judges are
included."
Ante
at
501 U. S. 467
(emphasis in original). I cannot agree with this "plain statement"
rule, because it is unsupported by the decisions upon which the
majority relies, contrary to our Tenth Amendment jurisprudence, and
fundamentally unsound.
Page 501 U. S. 475
Among other things, the ADEA makes it
"unlawful for an employer -- 1) 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."
29 U.S.C. § 623(a). In 1974, Congress amended the definition of
"employer" in the ADEA to include "a State or political subdivision
of a State." 29 U.S.C. § 630(b)(2). With that amendment, "there is
no doubt what the intent of Congress was: to extend the application
of the ADEA to the States."
EEOC v. Wyoming, 460 U.
S. 226,
460 U. S. 244,
n. 18 (1983).
The dispute in this case therefore is not whether Congress has
outlawed age discrimination by the States. It clearly has. The only
question is whether petitioners fall within the definition of
"employee" in the Act, § 630(f), which contains exceptions for
elected officials and certain appointed officials. If petitioners
are "employee[s]," Missouri's mandatory retirement provision
clearly conflicts with the antidiscrimination provisions of the
ADEA. Indeed, we have noted that the "policies and substantive
provisions of the [ADEA] apply with especial force in the case of
mandatory retirement provisions."
Western Air Lines v.
Criswell, 472 U. S. 400,
472 U. S. 410
(1985). Preemption therefore is automatic, since "state law is
preempted to the extent that it actually conflicts with federal
law."
Pacific Gas & Electric Co. v. State Energy Resources
Conservation and Development Comm'n, 461 U.
S. 190,
461 U. S. 204
(1983). The majority's federalism concerns are irrelevant to such
"actual conflict" preemption.
"'The relative importance to the State of its own law is not
material when there is a conflict with a valid federal law, for the
Framers of our Constitution provided that the federal law must
prevail.'"
Fidelity Federal Savings & Loan Assn. v. De la
Cuesta, 458 U. S. 141,
458 U. S. 153
(1982), quoting
Free v. Bland, 369 U.
S. 663,
369 U. S. 666
(1962).
While acknowledging this principle of federal legislative
supremacy,
see ante at
501 U. S. 460,
the majority nevertheless imposes
Page 501 U. S. 476
upon Congress a "plain statement" requirement. The majority
claims to derive this requirement from the plain statement approach
developed in our Eleventh Amendment cases,
see, e.g.,
Atascadero State Hospital v. Scanlon, 473 U.
S. 234,
473 U. S. 243
(1985), and applied two Terms ago in
Will v. Michigan Dept. of
State Police, 491 U. S. 58,
491 U. S. 65
(1989). The issue in those cases, however, was whether Congress
intended a particular statute to extend to the States
at
all. In
Atascadero, for example, the issue was
whether States could be sued under § 504 of the Rehabilitation Act
of 1973, 29 U.S.C. § 794. Similarly, the issue in
Will was
whether States could be sued under 42 U.S.C. § 1983. In the present
case, by contrast, Congress has expressly extended the coverage of
the ADEA to the States and their employees. Its intention to
regulate age discrimination by States is thus "unmistakably clear
in the language of the statute."
Atascadero, supra, 473
U.S. at
473 U. S. 242.
See Davidson v. Board of Governors of State Colleges and
Universities, 920 F.2d 441, 443 (CA7 1990) (ADEA satisfies
"clear statement" requirement). The only dispute is over the
precise details of the statute's application. We have never
extended the plain statement approach that far, and the majority
offers no compelling reason for doing so.
The majority also relies heavily on our cases addressing the
constitutionality of state exclusion of aliens from public
employment.
See ante at
501 U.S. 461-463,
501 U. S.
468-470. In those cases, we held that, although
restrictions based on alienage ordinarily are subject to strict
scrutiny under the Equal Protection Clause,
see Graham v.
Richardson, 403 U. S. 365,
403 U. S. 372
(1971), the scrutiny will be less demanding for exclusion of aliens
"from positions intimately related to the process of democratic
self-government."
Bernal v. Fainter, 467 U.
S. 216,
467 U. S. 220
(1984). This narrow "political function" exception to the strict
scrutiny standard is based on the "State's historical power to
exclude aliens from participation in its
Page 501 U. S. 477
democratic political institutions."
Sugarman v.
Dougall, 413 U. S. 634,
413 U. S. 648
(1973).
It is difficult to see how the "political function" exception
supports the majority's plain statement rule. First, the exception
merely reflects a determination of the scope of the rights of
aliens under the Equal Protection Clause. Reduced scrutiny is
appropriate for certain political functions because "the right to
govern is reserved to citizens."
Foley v. Connelie,
435 U. S. 291,
435 U. S. 297
(1978);
see also Sugarman, supra, 413 U.S. at
413 U. S.
648-649. This conclusion in no way establishes a method
for interpreting rights that are statutorily created by Congress,
such as the protection from age discrimination in the ADEA. Second,
it is one thing to limit
judicially created scrutiny, and
it is quite another to fashion a restraint on
Congress'
legislative authority, as does the majority; the latter is both
counter-majoritarian and an intrusion on a co-equal branch of the
federal government. Finally, the majority does not explicitly
restrict its rule to "functions that go to the heart of
representative government,"
id. at
413 U. S. 647,
and may, in fact, be extending it much further to all "state
governmental functions."
See ante at
501 U. S.
470.
The majority's plain statement rule is not only unprecedented,
it directly contravenes our decisions in
Garcia v. San Antonio
Metropolitan Transit Authority, 469 U.
S. 528, (1985), and
South Carolina v. Baker,
485 U. S. 505
(1988). In those cases, we made it clear
"that States must find their protection from congressional
regulation through the national political process, not through
judicially defined spheres of unregulable state activity."
Id. at
485 U. S. 512.
We also rejected as "unsound in principle and unworkable in
practice" any test for state immunity that requires a judicial
determination of which state activities are "traditional,"
"integral," or "necessary."
Garcia, supra, 469 U.S. at
469 U. S. 546.
The majority disregards those decisions in its attempt to carve out
areas of state activity that will receive special protection from
federal legislation.
Page 501 U. S. 478
The majority's approach is also unsound because it will serve
only to confuse the law. First, the majority fails to explain the
scope of its rule. Is the rule limited to federal regulation of the
qualifications of state officials?
See ante at
501 U. S. 464.
Or does it apply more broadly to the regulation of any "state
governmental functions"?
See ante at
501 U. S. 470.
Second, the majority does not explain its requirement that
Congress' intent to regulate a particular state activity be "plain
to anyone reading [the federal statute]."
See ante at
501 U. S. 467.
Does that mean that it is now improper to look to the purpose or
history of a federal statute in determining the scope of the
statute's limitations on state activities? If so, the majority's
rule is completely inconsistent with our preemption jurisprudence.
See, e.g., Hillsborough County v. Automated Medical
Laboratories, Inc., 471 U. S. 707,
471 U. S. 715
(1985) (preemption will be found where there is a "clear and
manifest
purpose" to displace state law; emphasis added).
The vagueness of the majority's rule undoubtedly will lead States
to assert that various federal statutes no longer apply to a wide
variety of State activities if Congress has not expressly referred
to those activities in the statute. Congress, in turn, will be
forced to draft long and detailed lists of which particular state
functions it meant to regulate.
The imposition of such a burden on Congress is particularly out
of place in the context of the ADEA. Congress already has stated
that all "individual[s] employed by any employer" are protected by
the ADEA unless they are expressly excluded by one of the
exceptions in the definition of "employee."
See 29 U.S.C.
§ 630(f). The majority, however, turns the statute on its head,
holding that state judges are not protected by the ADEA, because
"Congress has [not] made it clear that judges are
included."
Ante at
501 U. S. 467
(emphasis in original).
Cf. EEOC v. Wyoming, 460 U.
S. 226 (1983), where we held that state game wardens are
covered by the ADEA, even though such employees are not expressly
included within the ADEA's scope.
Page 501 U. S. 479
The majority asserts that its plain statement rule is helpful in
avoiding a "potential constitutional problem."
Ante at
501 U. S. 464.
It is far from clear, however, why there would be a constitutional
problem if the ADEA applied to state judges, in light of our
decisions in
Garcia and
Baker, discussed above.
As long as "the national political
process did not operate
in a defective manner, the Tenth Amendment is not implicated."
Baker, supra, 485 U.S. at
485 U. S. 512.
There is no claim in this case that the political process by which
the ADEA was extended to state employees was inadequate to protect
the States from being "unduly burden[ed]" by the Federal
Government.
See Garcia, supra, 469 U.S. at
469 U. S. 556.
In any event, as discussed below, a straightforward analysis of the
ADEA's definition of "employee" reveals that the ADEA does not
apply here. Thus, even if there were potential constitutional
problems in extending the ADEA to state judges, the majority's
proposed plain statement rule would not be necessary to avoid them
in this case. Indeed, because this case can be decided purely on
the basis of statutory interpretation, the majority's announcement
of its plain statement rule, which purportedly is derived from
constitutional principles,
violates our general practice
of avoiding the unnecessary resolution of constitutional
issues.
My disagreement with the majority does not end with its
unwarranted announcement of the plain statement rule. Even more
disturbing is its treatment of Congress' power under § 5 of the
Fourteenth Amendment.
See ante at
501 U. S.
467-470. Section 5 provides that "[t]he Congress shall
have power to enforce, by appropriate legislation, the provisions
of this article." Despite that sweeping constitutional delegation
of authority to Congress, the majority holds that its plain
statement rule will apply with full force to legislation enacted to
enforce the Fourteenth Amendment. The majority states:
"In the face of . . . ambiguity, we will not attribute to
Congress an intent to intrude on state governmental functions
regardless of whether Congress acted pursuant to its
Page 501 U. S. 480
Commerce Clause powers or § 5 of the Fourteenth
Amendment."
Ante at
501 U. S. 470
(emphasis added). [
Footnote
2/1]
The majority's failure to recognize the special status of
legislation enacted pursuant to § 5 ignores that, unlike Congress'
Commerce Clause power,
"[w]hen Congress acts pursuant to § 5, not only is it exercising
legislative authority that is plenary within the terms of the
constitutional grant, it is exercising that authority under one
section of a constitutional Amendment whose other sections by their
own terms embody limitations on state authority."
Fitzpatrick v. Bitzer, 427 U.
S. 445,
427 U. S. 456
(1976). Indeed, we have held that
"principles of federalism that might otherwise be an obstacle to
congressional authority are necessarily overridden by the power to
enforce the Civil War Amendments 'by appropriate legislation.'
Those Amendments were specifically designed as an expansion of
federal power and an intrusion on state sovereignty."
City of Rome v. United States, 446 U.
S. 156,
446 U. S. 179
(1980);
see also EEOC v. Wyoming, 460 U.S. at
460 U. S. 243,
n. 18.
The majority relies upon
Pennhurst State School and Hospital
v. Halderman, 451 U. S. 1 (1981),
see ante at
501 U. S.
469-470, but that case does not support its approach.
There, the Court merely stated that "we should not quickly
attribute to Congress an unstated intent to act under its authority
to enforce the Fourteenth Amendment." 451 U.S. at
451 U. S. 16. In
other words, the
Pennhurst presumption was designed only
to answer the question whether a particular piece of
legislation
Page 501 U. S. 481
was enacted pursuant to § 5. That is very different from the
majority's apparent holding that, even when Congress
is
acting pursuant to § 5, it nevertheless must specify the precise
details of its enactment.
The majority's departures from established precedent are even
more disturbing when it is realized, as discussed below, that this
case can be affirmed based on simple statutory construction.
II
The statute at issue in this case is the ADEA's definition of
"employee," which provides:
"The term 'employee' means an individual employed by any
employer except that the term 'employee' shall not include any
person elected to public office in any State or political
subdivision of any State by the qualified voters thereof, or any
person chosen by such officer to be on such officer's personal
staff, or an appointee on the policymaking level or an immediate
adviser with respect to the exercise of the constitutional or legal
powers of the office. The exemption set forth in the preceding
sentence shall not include employees subject to the civil service
laws of a State government, governmental agency, or political
subdivision."
29 U.S.C. § 630(f).
A parsing of that definition reveals that it excludes from the
definition of "employee" (and thus the coverage of the ADEA) four
types of (non-civil service) state and local employees: (1) persons
elected to public office; (2) the personal staff of elected
officials; (3) persons appointed by elected officials to be on the
policymaking level; and (4) the immediate advisers of elected
officials with respect to the constitutional or legal powers of the
officials' offices.
The question before us is whether petitioners fall within the
third exception. Like the Court of Appeals,
see 898 F.2d
598, 600 (CA8 1990), I assume that petitioners, who were initially
appointed to their positions by the Governor of
Page 501 U. S. 482
Missouri, are "appointed," rather than "elected," within the
meaning of the ADEA. For the reasons below, I also conclude that
petitioners are "on the policymaking level." [
Footnote 2/2]
"Policy" is defined as
"a definite course or method of action selected (as by a
government, institution, group, or individual) from among
alternatives and in the light of given conditions to guide and
usu[ally] determine present and future decisions."
Webster's Third New International Dictionary 1754 (1976).
Applying that definition, it is clear that the decisionmaking
engaged in by common law judges, such as petitioners, places them
"on the policymaking level." In resolving disputes, although judges
do not operate with unconstrained discretion, they do choose "from
among alternatives" and elaborate their choices in order "to guide
and . . . determine present and future decisions." The quotation
from Justice Holmes in the majority's opinion,
see ante at
501 U. S. 466,
is an eloquent description of the policymaking nature of the
judicial function. Justice Cardozo also stated it well:
"Each [common law judge] indeed is legislating within the limits
of his competence. No doubt the limits for the judge are narrower.
He legislates only between gaps. He fills the open spaces in the
law. . . . [W]ithin the confines of these open spaces and those of
precedent and tradition, choice moves with a freedom which stamps
its action as creative. The law which is the resulting product is
not found, but made."
B. Cardozo, The Nature of the Judicial Process 113-115
(1921).
Page 501 U. S. 483
Moreover, it should be remembered that the statutory exception
refers to appointees "on the policymaking level," not "policymaking
employees." Thus, whether or not judges actually
make
policy, they certainly are on the same
level as
policymaking officials in other branches of government, and
therefore are covered by the exception. The degree of
responsibility vested in judges, for example, is comparable to that
of other officials that have been found by the lower courts to be
on the policymaking level.
See, e.g., EEOC v. Reno, 758
F.2d 581 (CA11 1985) (assistant state attorney);
EEOC v. Board
of Trustees of Wayne Cty. Comm. Coll., 723 F.2d 509 (CA6 1983)
(president of community college).
Petitioners argue that the "appointee[s] on the policymaking
level" exception should be construed to apply "only to persons who
advise or work closely with the elected official that chose the
appointee." Brief for Petitioners 18. In support of that claim,
petitioners point out that the exception is "sandwiched" between
the "personal staff" and "immediate adviser" exceptions in §
630(f), and thus should be read as covering only similar
employees.
Petitioners' premise, however, does not prove their conclusion.
It is true that the placement of the "appointee" exception between
the "personal staff" and "immediate adviser" exceptions suggests a
similarity among the three. But the most obvious similarity is
simply that each of the three sets of employees are connected in
some way with elected officials: the first and third sets have a
certain working relationship with elected officials, while the
second is
appointed by elected officials. There is no
textual support for concluding that the second set must
also have a close working relationship with elected
officials. Indeed, such a reading would tend to make the
"appointee" exception superfluous, since the "personal staff" and
"immediate adviser" exceptions would seem to cover most appointees
who are in a close working relationship with elected officials.
Page 501 U. S. 484
Petitioners seek to rely on legislative history, but it does not
help their position. There is little legislative history discussing
the definition of "employee" in the ADEA, so petitioners point to
the legislative history of the identical definition in Title VII,
42 U.S.C. § 2000e(f). If anything, that history tends to confirm
that the "appointee[s] on the policymaking level" exception was
designed to exclude from the coverage of the ADEA all high-level
appointments throughout state government structures, including
judicial appointments.
For example, during the debates concerning the proposed
extension of Title VII to the States, Senator Ervin repeatedly
expressed his concern that the (unamended) definition of "employee"
would be construed to reach those "persons who exercise the
legislative, executive,
and judicial powers of the States
and political subdivisions of the States." 118 Cong.Rec. 1838
(1972) (emphasis added). Indeed, he expressly complained that
"[t]here is not even an exception in the [unamended] bill to the
effect that the EEOC will not have jurisdiction over . . . State
judges, whether they are elected or appointed to office."
Id. at 1677. Also relevant is Senator Taft's comment
that, in order to respond to Senator Ervin's concerns, he was
willing to agree to an exception not only for elected officials,
but also for "those at the top decisionmaking levels in the
executive and judicial branch as well."
Id. at 1838.
The definition of "employee" subsequently was modified to
exclude the four categories of employees discussed above. The
Conference Committee that added the "appointee[s] on the
policymaking level" exception made clear the separate nature of
that exception:
"It is the intention of the conferees to exempt elected
officials and members of their personal staffs, and persons
appointed by such elected officials as advisors or to policymaking
positions
at the highest levels of the departments or
agencies of State or local governments, such as
Page 501 U. S. 485
cabinet officers, and persons with comparable responsibilities
at the local level."
H.R.Conf.Rep. No. 92-899, pp. 116 (1972) (emphasis added).
The italicized "or" in that statement indicates, contrary to
petitioners' argument, that appointed officials need not be
advisers to be covered by the exception. Rather, it appears that
"Congress intended two categories: policymakers, who need not be
advisers; and advisers, who need not be policymakers."
EEOC v.
Massachusetts, 858 F.2d 52, 56 (CA1 1988). This reading is
confirmed by a statement by one of the House Managers,
Representative Erlenborn, who explained that,
"[i]n the conference, an additional qualification was added,
exempting those people appointed by officials at the State and
local level in policymaking positions."
118 Cong.Rec. at 7567.
In addition, the phrase "the highest levels" in the Conference
Report suggests that Congress' intent was to limit the exception
"down the chain of command, and not so much across agencies or
departments."
EEOC v. Massachusetts, 858 F.2d at 56. I
also agree with the First Circuit's conclusion that even lower
court judges fall within the exception, because
"each judge, as a separate and independent judicial officer, is
at the very top of his particular 'policymaking' chain of command,
responding . . . only to a higher appellate court."
Ibid.
For these reasons, I would hold that petitioners are excluded
from the coverage of the ADEA because they are "appointee[s] on the
policymaking level" under 29 U.S.C. § 630(f). [
Footnote 2/3]
Page 501 U. S. 486
I join Parts I and III of the Court's opinion, and concur in its
judgment.
[
Footnote 2/1]
In
EEOC v. Wyoming, 460 U. S. 226
(1983), we held that the extension of the ADEA to the States was a
valid exercise of congressional power under the Commerce Clause. We
left open, however, the issue whether it was also a valid exercise
of Congress' power under § 5 of the Fourteenth Amendment.
Cf.
Fitzpatrick v. Bitzer, 427 U. S. 445,
427 U. S. 453,
n. 9 (1976) (extension of Title VII to States was pursuant to
Congress' § 5 power). Although we need not resolve the issue in
this case, I note that at least two Courts of Appeals have held
that the ADEA was enacted pursuant to Congress' § 5 power.
See
Heiar v. Crawford County, 746 F.2d 1190 1193-1194 (CA7 1984);
Ramirez v. Puerto Rico Fire Service, 715 F.2d 694, 700
(CA1 1983).
[
Footnote 2/2]
Most of the lower courts that have addressed the issue have
concluded that appointed state judges fall within the "appointee[s]
on the policymaking level" exception.
See 898 F.2d 598
(CA8 1990) (case below),
EEOC v. Massachusetts, 858 F.2d
52 (CA1 1988);
Sabo v. Casey, 757 F.
Supp. 587 (ED Pa.1991);
In re Stout, 521 Pa. 571,
559 A.2d
489 (1989);
see also EEOC v. Illinois, 721 F.
Supp. 156 (ND Ill. .1989).
But see EEOC v. Vermont,
904 F.2d 794 (CA2 1990);
Schlitz v.
Virginia, 681 F.
Supp. 330 (ED Va.),
rev'd on other grounds, 854 F.2d
43 (CA4 1988).
[
Footnote 2/3]
The dissent argues that we should defer to the EEOC's view
regarding the scope of the "policymaking level" exception.
See
post at
501 U. S.
493-494. I disagree. The EEOC's position is not embodied
in any formal issuance from the agency, such as a regulation,
guideline, policy statement, or administrative adjudication.
Instead, it is merely the EEOC's
litigating position in
recent lawsuits. Accordingly, it is entitled to little, if any,
deference.
See, e.g., Bowen v. Georgetown University
Hospital, 488 U. S. 204,
488 U. S.
212-213 (1988);
St. Agnes Hospital v. Sullivan,
905 F.2d 1563, 1568 (CADC 1990). Although the dissent does cite to
an EEOC decision involving the policymaking exception in Title VII,
see post at
501 U. S. 494,
that decision did not state, even in
dicta, that the
exception is limited to those who work closely with elected
officials. Rather, it merely stated that the exception applies to
officials "on the highest levels of state or local government." CCH
EEOC Decisions (1983) � 6725. In any event, the EEOC's position is,
for the reasons discussed above, inconsistent with the plain
language of the statute at issue. "[N]o deference is due to agency
interpretations at odds with the plain language of the statute
itself."
Ohio Public Employees Retirement System v. Betts,
492 U. S. 158,
492 U. S. 171
(1989).
JUSTICE BLACKMUN, with whom JUSTICE MARSHALL joins,
dissenting.
I agree entirely with the cogent analysis contained in Part I of
JUSTICE WHITE's opinion,
ante. For the reasons well stated
by JUSTICE WHITE, the question we must resolve is whether appointed
Missouri state judges are excluded from the general
prohibition of mandatory retirement that Congress
established in the Federal Age Discrimination in Employment Act
(ADEA), 29 U.S.C. §§ 621-634. I part company with JUSTICE WHITE,
however, in his determination that appointed state judges fall
within the narrow exclusion from ADEA coverage that Congress
created for an "appointee on the policymaking level." 29 U.S.C. §
630(f).
I
For two reasons, I do not accept the notion that an appointed
state judge is an "appointee on the policymaking level." First,
even assuming that judges may be described as policymakers in
certain circumstances, the structure and legislative history of the
policymaker exclusion make clear that judges are not the kind of
policymakers whom Congress intended to exclude from the ADEA's
broad reach. Second,
Page 501 U. S. 487
whether or not a plausible argument may be made for judges'
being policymakers, I would defer to the EEOC's reasonable
construction of the ADEA as covering appointed state judges.
A
Although it may be possible to define an appointed judge as a
"policymaker" with only a dictionary as a guide, [
Footnote 3/1] we have an obligation to construe the
exclusion of an "appointee on the policymaking level" with a
sensitivity to the context in which Congress placed it. In
construing an undefined statutory term, this Court has adhered
steadfastly to the rule that "
"`words grouped in a list should
be given related meaning,'"'" Dole v. Steelworkers,
494 U. S. 26,
494 U. S. 36
(1990), quoting Massachusetts v. Morash, 490 U.
S. 107, 490 U. S.
114-115 (1989), quoting Schreiber v. Burlington
Northern, Inc., 472 U. S. 1,
472 U. S. 8
(1985), quoting Securities Industry Assn. v. Board of
Governors, FRS, 468 U. S. 207,
468 U. S. 218
(1984), and that,
"'in expounding a statute, we [are] not . . . guided by a single
sentence or member of a sentence, but look to the provisions of
Page 501 U. S. 488
the whole law, and to its object and policy.'"
Morash, 490 U.S. at
490 U. S. 115,
quoting
Pilot Life Insurance Co. v. Dedeaux, 481 U. S.
41,
481 U. S. 51
(1987). Applying these maxims of statutory construction, I conclude
that an appointed state judge is not the kind of "policymaker" whom
Congress intended to exclude from the protection of the ADEA.
The policymaker exclusion is placed between the exclusion of
"any person chosen by such [elected] officer to be on such
officer's personal staff" and the exclusion of "an immediate
advisor with respect to the exercise of the constitutional or legal
powers of the office."
See 29 U.S.C. § 630(f). Reading the
policymaker exclusion in light of the other categories of employees
listed with it, I conclude that the class of "appointee[s] on the
policymaking level" should be limited to those officials who share
the characteristics of personal staff members and immediate
advisers,
i.e., those who work closely with the appointing
official and are directly accountable to that official.
Additionally, I agree with the reasoning of the Second Circuit in
EEOC v. Vermont, 904 F.2d 794 (1990):
"Had Congress intended to except a wide-ranging category of
policymaking individuals operating wholly independently of the
elected official, it would probably have placed that expansive
category at the end of the series, not in the middle."
Id. at 798. Because appointed judges are not
accountable to the official who appoints them and are precluded
from working closely with that official once they have been
appointed, they are not "appointee[s] on the policymaking level"
for purposes of 29 U.S.C. § 630(f). [
Footnote 3/2]
Page 501 U. S. 489
B
The evidence of Congress' intent in enacting the policymaking
exclusion supports this narrow reading. As noted by JUSTICE WHITE,
ante at
501 U. S. 484,
there is little in the legislative history of § 630(f) itself to
aid our interpretive endeavor. Because Title VII of the Civil
Rights Act of 1964 § 701(f), as amended, 42 U.S.C. § 2000e(f),
contains language identical to that in the ADEA's policymaking
exclusion, however, we accord substantial weight to the legislative
history of the cognate Title VII provision in construing § 630(f).
See Lorillard v. Pons, 434 U. S. 575,
434 U. S. 584
(1978) (noting that "the prohibitions of the ADEA were derived
in haec verba from Title VII").
See also Trans World
Airlines, Inc. v. Thurston, 469 U. S. 111,
469 U. S. 121
(1985);
Oscar Mayer & Co. v. Evans, 441 U.
S. 750,
441 U. S. 756
(1979);
EEOC v. Vermont, 904 F.2d at 798.
When Congress decided to amend Title VII to include States and
local governments as employers, the original bill did not contain
any employee exclusion. As JUSTICE WHITE notes,
ante at
501 U. S. 484,
the absence of a provision excluding certain state employees was a
matter of concern for Senator Ervin, who commented that the bill,
as reported, did not contain a provision "to the effect that the
EEOC will not have jurisdiction over . . . State judges, whether
they are elected or appointed to office. . . ." 118 Cong.Rec. 1677
(1972). Because this floor comment refers to appointed judges,
JUSTICE WHITE concludes that the later amendment containing the
exclusion of "an appointee on the policymaking level" was drafted
in "response to the concerns raised by Senator Ervin and others,"
ante at
501 U. S.
484-485, and therefore should be read to include
judges.
Even if the only legislative history available was the
above-quoted statement of Senator Ervin and the final
Page 501 U. S. 453
amendment containing the policymaking exclusion, I would be
reluctant to accept JUSTICE WHITE's analysis. It would be odd to
conclude that the general exclusion of those "on the policymaking
level" was added in response to Senator Ervin's very specific
concern about appointed judges. Surely, if Congress had desired to
exclude judges -- and was responding to a specific complaint that
judges would be within the jurisdiction of the EEOC -- it would
have chosen far clearer language to accomplish this end. [
Footnote 3/3] In any case, a more detailed
look at the genesis of the policymaking exclusion seriously
undermines the suggestion that it was intended to include appointed
judges.
After commenting on the absence of an employee exclusion,
Senator Ervin proposed the following amendment:
"[T]he term 'employee' as set forth in the original act of 1964
and as modified in the pending bill shall not include any person
elected to public office in any State or political subdivision of
any State by the qualified voters thereof, or any person chosen by
such person to advise him in respect to the exercise of the
constitutional or legal powers of his office."
118 Cong.Rec. 4483 (1972). Noticeably absent from this proposed
amendment is any reference to those on the policymaking level or to
judges. Senator Williams then suggested expanding the proposed
amendment to include the personal staff of the elected individual,
leading Senators Williams and Ervin to engage in the following
discussion about the purpose of the amendment:
Page 501 U. S. 491
"Mr. WILLIAMS: . . . . "
"First, State and local governments are now included under the
bill as employers. The amendment would provide, for the purposes of
the bill and for the basic law, that an elected individual is not
an employee and, th[e]refore, the law could not cover him. The next
point is that the elected official would, in his position as an
employer, not be covered and would be exempt in the employment of
certain individuals."
* * * *
". . . [B]asically the purpose of the amendment . . . [is] to
exempt from coverage those who are chosen by the Governor or the
mayor or the county supervisor, whatever the elected official is,
and who are in a close personal relationship and an immediate
relationship with him. Those who are his first line of advisers. Is
that basically the purpose of the Senator's amendment?"
"Mr. ERVIN: I would say to my good friend from New Jersey that
that is the purpose of the amendment."
Id. at 4492-4493.
Following this exchange, Senator Ervin's amendment was expanded
to exclude "any person chosen by such officer to be a personal
assistant."
Id. at 4493. The Senate adopted these
amendments, voting to exclude both personal staff members and
immediate advisers from the scope of Title VII.
The policymaker exclusion appears to have arisen from Senator
Javits' concern that the exclusion for advisers would sweep too
broadly, including hundreds of functionaries such as "lawyers, . .
. stenographers, subpoena servers, researchers, and so forth."
Id. at 4097. Senator Javits asked "to have overnight to
check into what would be the status of that rather large group of
employees," noting that he "realize[d] that . . . Senator [Ervin
was] . . . seeking to confine it to the higher officials in a
policymaking or policy advising capacity."
Page 501 U. S. 492
Ibid. In an effort to clarify his point, Senator Javits
later stated:
"The other thing, the immediate advisers, I was thinking more in
terms of a cabinet, of a Governor who would call his commissioners
a cabinet, or he may have a cabinet composed of three or four
executive officials, or five or six, who would do the main and
important things. That is what I would define these things
expressly to mean."
Id. at 4493.
Although Senator Ervin assured Senator Javits that the exclusion
of personal staff and advisers affected only the classes of
employees that Senator Javits had mentioned,
ibid., the
Conference Committee eventually adopted a specific exclusion of an
"appointee on the policymaking level" as well as the exclusion of
personal staff and immediate advisers contained in the Senate bill.
In explaining the scope of the exclusion, the conferees stated:
"It is the intention of the conferees to exempt elected
officials and members of their personal staffs, and persons
appointed by such officials as advisors or to policymaking
positions at the highest levels of the departments or agencies of
State or local governments, such as cabinet officers, and persons
with comparable responsibilities at the local level. It is the
conferees['] intent that this exemption shall be construed
narrowly."
S.Conf.Rep. No. 92-681, pp. 116 (1972).
The foregoing history decisively refutes the argument that the
policymaker exclusion was added in response to Senator Ervin's
concern that appointed state judges would be protected by Title
VII. Senator Ervin's own proposed amendment did not exclude those
on the policymaking level. Indeed, Senator Ervin indicated that all
of the policymakers he sought to have excluded from the coverage of
Title VII were encompassed in the exclusion of personal staff and
immediate advisers. It is obvious that judges are neither staff nor
immediate
Page 501 U. S. 493
advisers of any elected official. The only indication as to whom
Congress understood to be "appointee[s] on the policymaking level"
is Senator Javits' reference to members of the Governor's cabinet,
echoed in the Conference Committee's use of "cabinet officers" as
an example of the type of appointee at the policymaking level
excluded from Title VII's definition of "employee." When combined
with the Conference Committee's exhortation that the exclusion be
construed narrowly, this evidence indicates that Congress did not
intend appointed state judges to be excluded from the reach of
Title VII or the ADEA.
C
This Court has held that, when a statutory term is ambiguous or
undefined, a court construing the statute should defer to a
reasonable interpretation of that term proffered by the agency
entrusted with administering the statute.
See Chevron
U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U. S. 837,
467 U. S.
842-843 (1984). Thus, even were I to conclude that one
might read the exclusion of an "appointee on the policymaking
level" to include state judges, our precedent would compel me to
accept the EEOC's contrary reading of the exclusion if it were a
"permissible" interpretation of this ambiguous term.
Id.
at
467 U. S. 843.
This Court has recognized that
"it is axiomatic that the EEOC's interpretation of Title VII,
for which it has primary enforcement responsibility, need not be
the best one by grammatical or any other standards. Rather, the
EEOC's interpretation of ambiguous language need only be reasonable
to be entitled to deference."
EEOC v. Commercial Office Products Co., 486 U.
S. 107,
486 U. S. 115
(1988). The EEOC's interpretation of ADEA provisions is entitled to
the same deference as its interpretation of analogous provisions in
Title VII.
See Oscar Mayer & Co. v. Evans,
441 U. S. 750,
441 U. S. 761
(1979), citing
Griggs v. Duke Power Co., 401 U.
S. 424,
401 U. S. 434
(1971).
Page 501 U. S. 494
The EEOC consistently has taken the position that an appointed
judge is not an "appointee on the policymaking level" within the
meaning of 29 U.S.C. § 630(f).
See EEOC v. Vermont, 904
F.2d 794 (CA2 1990);
EEOC v. Massachusetts, 858 F.2d 52
(CA1 1988);
EEOC v. Illinois, 721 F.
Supp. 156 (ND Ill.1989). Relying on the legislative history
detailed above, the EEOC has asserted that Congress intended the
policymaker exclusion to include only "an elected official's first
line advisers."
EEOC v. Massachusetts, 858 F.2d at 55.
See also CCH EEOC Decisions (1983) � 6725 (discussing the
meaning of the policymaker exclusion under Title VII, and stating
that policymakers "must work closely with elected officials and
their advisors in developing policies that will implement the
overall goals of the elected officials"). As is evident from the
foregoing discussion, I believe this to be a correct reading of the
statute and its history. At a minimum, it is a "permissible"
reading of the indisputably ambiguous term "appointee on the
policymaking level." Accordingly, I would defer to the EEOC's
reasonable interpretation of this term. [
Footnote 3/4]
Page 501 U. S. 495
II
The Missouri constitutional provision mandating the retirement
of a judge who reaches the age of 70 violates the ADEA and is,
therefore, invalid. [
Footnote 3/5]
Congress enacted the ADEA with the express purpose
"to promote employment of older persons based on their ability
rather than age; to prohibit arbitrary age discrimination in
employment; to help employers and workers find ways of meeting
problems arising from the impact of age on employment."
29 U.S.C. § 621. Congress provided for only limited exclusions
from the coverage of the ADEA, and exhorted courts applying this
law to construe such exclusions narrowly. The statute's structure
and legislative history reveal that Congress did not intend an
appointed state judge to be beyond the scope of the ADEA's
protective reach. Further, the EEOC, which is charged with the
enforcement of the ADEA, has determined that an appointed state
judge is covered by the ADEA. This Court's precedent dictates that
we defer to the EEOC's permissible interpretation of the ADEA.
I dissent.
[
Footnote 3/1]
JUSTICE WHITE finds the dictionary definition of "policymaker"
broad enough to include the Missouri judges involved in this case,
because judges resolve disputes by choosing "
from among
alternatives' and elaborate their choices in order `to guide and .
. . determine present and future decisions.'" Ante at
501 U. S. 482.
See also Gregory v. Ashcroft, 898 F.2d 598, 601 (CA8
1990), quoting EEOC v. Massachusetts, 858 F.2d 52, 55 (CA1
1988). I hesitate to classify judges as policymakers, even at this
level of abstraction. Although some part of a judge's task may be
to fill in the interstices of legislative enactments, the
primary task of a judicial officer is to apply rules
reflecting the policy choices made by, or on behalf of, those
elected to legislative and executive positions. A judge is first
and foremost one who resolves disputes, and not one charged with
the duty to fashion broad policies establishing the rights and
duties of citizens. That task is reserved primarily for
legislators. See EEOC v. Vermont, 904 F.2d 794, 800-801
(CA2 1990).
Nor am I persuaded that judges should be considered policymakers
because they sometimes fashion court rules, and are otherwise
involved in the administration of the state judiciary.
See In
re Stout, 521 Pa. 571, 583-586,
559 A.2d
489, 495-497 (1989). These housekeeping tasks are at most
ancillary to a judge's primary function described above.
[
Footnote 3/2]
I disagree with JUSTICE WHITE's suggestion that this reading of
the policymaking exclusion renders it superfluous.
Ante at
501 U. S. 483.
There exist policymakers who work closely with an appointing
official but who are appropriately classified as neither members of
his "personal staff" nor "immediate adviser[s] with respect to the
exercise of the constitutional or legal powers of the office."
Among others, certain members of the Governor's Cabinet and high
level state agency officials well might be covered by the
policymaking exclusion, as I construe it.
[
Footnote 3/3]
The majority acknowledges this anomaly by noting that
"'appointee [on] the policymaking level,' particularly in the
context of the other exceptions that surround it, is an odd way for
Congress to exclude judges; a plain statement that judges are not
'employees' would seem the most efficient phrasing."
Ante at
501 U. S. 467.
The majority dismisses this objection not by refuting it, but by
noting that "we are not looking for a plain statement that judges
are excluded."
Ibid. For the reasons noted in
501 U. S. 474
Part I of JUSTICE WHITE's opinion, this reasoning is faulty;
appointed judges are covered unless they fall within the enumerated
exclusions.
[
Footnote 3/4]
Relying on
Bowen v. Georgetown University Hospital,
488 U. S. 204
(1988), JUSTICE WHITE would conclude that the EEOC's view of the
scope of the policymaking exclusion is entitled to "little if any
deference," because it is "merely the EEOC's
litigating
position in recent lawsuits."
Ante at
501 U. S. 485.
This case is distinguishable from
Bowen, however, in two
important respects. First, unlike in
Bowen, where the
Court declined to defer "to agency litigating positions that are
wholly unsupported by regulations, rulings, or administrative
practice," 488 U.S. at
488 U. S. 212,
the EEOC here has issued an administrative ruling construing Title
VII's cognate policymaking exclusion that is entirely consistent
with the agency's subsequent "litigation position" that appointed
judges are not the kind of officials on the policymaking level whom
Congress intended to exclude from ADEA coverage.
See CCH
EEOC Decisions (1983) � 6725. Second, the Court in
Bowen
emphasized that the agency had failed to offer "a reasoned and
consistent view of the scope of" the relevant statute, and had
proffered an interpretation of the statute that was "contrary to
the narrow view of that provision advocated in past cases."
See 488 U.S. at
488 U. S.
212-213. In contrast, however, the EEOC never has
waivered from its view that the policymaking exclusion does not
apply to appointed judges. Thus, this simply is not a case in which
a court is asked to defer to "nothing more than an agency's
convenient litigating position."
Id. at
488 U. S. 213.
For all the reasons that deference was inappropriate in
Bowen, it is appropriate here.
[
Footnote 3/5]
Because I conclude that the challenged Missouri constitutional
provision violates the ADEA, I need not consider petitioners'
alternative argument that the mandatory retirement provision
violates the Fourteenth Amendment to the United States
Constitution.
See Carnival Cruise Lines, Inc. v. Shute,
499 U. S. 585,
499 U. S.
589-590.