Shadow precedents and the separation of powers: Statutory interpretation of congressional overrides

Notre Dame Law Review

Volumn 84, Issue 2, 2009, Pages 511-583

  Widiss, Deborah A ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 62149099495     PISSN: 07453515     EISSN: None     Source Type: Journal    
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References (290)

1. Johnson v. Transp. Agency, 480 U.S. 616, 630 n.7 (1987) (quoting Guroo CALA-BRESI, A COMMON LAW FOR THE AGE OF STATUTES 31-32 (1982)).
2. See, e.g., William N. Eskridge, Jr., Overriding Supreme Court Statutory Interpretation Decisions, 101 YALE L.J. 331 (1991).
3. See Nancy C. Staudt et al., Judicial Decisions As Legislation: Congressional Oversight of Supreme Court Tax Cases, 1954-2005, 82 N.Y.U. L. REV. 1340, 1354 (2007).
4. JEB BARNES, OVERRULED? LEGISLATIVE OVERRIDES, PLURALISM, AND CONTEMPORARY COURT-CONGRESS RELATIONS 90 (2004).
5. James Brudney considers many related questions in an article exploring the extent to which courts should consider legislative history expressing approval or disapproval of court decisions. See James J. Brudney, Congressional Commentary on Judicial Interpretations of Statutes: Idle Chatter or Telling Response'?, 93 MICH. L. REV. 1 (1994). Additionally, in the employment discrimination context, there are a handful of articles that explore the specific question of whether an interpretation that has been overridden with respect to one statute should be applied to other statutes that are generally interpreted in tandem. See infra note 163.
6. See infra Part III.D.
7. See, e.g., Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 268 (1986) (Stevens, J., concurring in part and dissenting in part) ("[A]fter a statute has been construed, either by this Court or by a consistent course of decision by other federal judges or agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself.").
8. See, e.g., Gomez-Perez v. Potter, 128 S. Ct. 1931, 1936 (2008) (relying on prior statutory precedents to construe a similar discrimination statute).
9. See Frederick Schauer, Precedent, 39 STAN. L. REV. 571, 595-601 (1987).
10. Pub. L. No. 102-166, 105 Stat. 107 (codified as amended in scattered sections of 2, 16, 29, 42 U.S.C.).
11. See also Eskridge, supra note 2, at 333 n.4 (cataloguing overridden cases).
12. Pub. L. No. 110-325,122 Stat. 3553 (2008) (codified in scattered sections of 29, 42 U.S.C.) (effective Jan. 1, 2009).
13. See Lilly Ledbetter Fair Pay Act of 2007, H.R. 2831, 110th Cong. (as passed by House, July 31, 2007); Fair Pay Restoration Act, S. 1843, 110th Cong. (2007); Carrie Sheffield, Filibuster Blocks Wage-Bias Lawsuit Bill, WASH. TIMES, Apr. 24, 2008, at A4 (discussing the filibuster).
14. An empirical study suggests that areas of the law that are typically subject to partisan divides may yield greater judicial dissensus after overrides than other areas. See BARNES, supra note 4, at 169-70. In this respect, the prevalence of shadow precedents in employment discrimination may be somewhat unusual. Nonetheless, it is particularly in such areas of the law that there is greatest reason for concern that reliance on shadow precedents may undermine Congress' authority to shape statutory law.
15. U.S. 900 (1989).
16. U.S. 228 (1989).
17. U.S. 125 (1976).
18. U.S. CONST. art. I, § 1. This Article primarily discusses federal legislation and the federal courts' interpretation of it. Similar principles would apply, however, under most state constitutional structures.
19. See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 222 (1995) ("The power of '[t]he interpretation of the laws' [is] 'the proper and peculiar province of the courts.'" (first alteration in original) (quoting THE FEDERALIST NO. 78, at 525 (Alexander Hamilton) (J. Cooke ed., 1961))).
20. See, e.g., Edward O. Correia, A Legislative Conception of Legislative Supremacy, 42 CASE W. RES. L. REV. 1129, 1141-43 (1992) (explaining the debate over the proper meaning and significance of legislative supremacy and how that debate shapes alternative approaches to statutory interpretation); Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 GEO. L.J. 281, 283-94 (1989) (describing "strong" and "weak" conceptions of supremacy).
21. See Chevron U.S.A. Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837, 844 (1984). In practice, however, the level of judicial deference to agency interpretations varies dramatically. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083 (2008).
22. Jerome Frank, Words and Music: Some Remarks on Statutory Interpretation, 47 COLUM. L. REV. 1259, 1269 (1947).
23. See generally REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 43-53 (1975) (discussing the inherent limitations of language and typical causes of ambiguity in statutes). Sometimes legislators leave questions unresolved in order to build a consensus to enact a bill. See, e.g., Victoria F. Nourse & Jane S. Schacter, The Politics of Legislative Drafting: A Congressional Case Study, 77 N.Y.U. L. REV. 575, 594-96 (2002) (documenting "deliberate ambiguity" in statutes).
24. See, e.g., Green v. Bock Laundry Mach. Co., 490 U.S. 504, 527 (1989) (Scalia, J., concurring) (declining to apply plain language of a statute which, "if interpreted literally, produces an absurd, and perhaps unconstitutional, result"); see also Jonathan R. Siegel, What Statutory Drafting Errors Teach Us About Statutory Interpretation, 69 GEO. WASH. L. REV. 309, 326-32 (2001) (exploring the textualist "absurd results exception" as it relates to the federal venue statute).
25. Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 593 (1995).
26. The term was coined by Alexander Bickel. See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16 (2d ed. Yale University Press 1986).
27. See, e.g., Lawrence C. Marshall, "Let Congress Do It": The Case for an Absolute Rule of Statutory Stare Decisis, 88 MICH. L. REV. 177, 204 (1989) ("There is no doubt that the potential for congressional override significantly mitigates the countermajoritarian difficulty of statutory interpretation . . . .").
28. Cf. BARNES, supra note 4, at 31-34 (discussing the relative disadvantages of alternative control mechanisms such as impeachment, review of judicial appointments, control of the budget, and the ability to propose constitutional amendments).
29. The term "super-strong" is from William N. Eskridge, Jr., Overruling Statutory Precedents, 76 GEO. L.J. 1361, 1366 (1987).
30. See, e.g., Flood v. Kuhn, 407 U.S. 258, 284 (1972) ("If there is any inconsistency or illogic in all this, it is an inconsistency and illogic of long standing to be remethed by the Congress and not by this Court.").
31. See, e.g., Hohn v. United States, 524 U.S. 236, 251-53 (1998).
32. See, e.g., Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575-76 (1982) (applying statutory language notwithstanding odd or arguably absurd policy results on the grounds that any changes should be made by Congress); Tenn. Valley Auth. v. Hill, 437 U.S. 153, 194-95 (1978) (same).
33. See EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 32 (1949); Marshall, supra note 27, at 200-15.
34. See, e.g., WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 52-55 (1994); T. Alexander Aleinikoff, Updating Statutory Interpretation, 87 MICH. L. REV. 20, 46-66 (1988); Einer Elhauge, Preference-Estimating Statutory Default Rules, 102 COLUM. L. REV. 2027, 2112-26 (2002). Amanda Tyler groups these theorists together as "dynamic" theorists. Amanda L. Tyler, Continuity, Coherence, and the Canons, 99 Nw. U. L. REV. 1389, 1391 (2005).
35. See GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES 105 (1982).
36. See, e.g., id. at 169 (observing that the potential for override creates a check against "willful" judicial abuse, and arguing that the check might be insufficient); ESKRIDGE, supra note 34, at 151 ("[D]ynamic statutory interpretation, even against legislative expectations, is subject to override by the legislature and in fact may even be a stimulus to legislative deliberation.").
37. Professors Elhauge and Eskridge each also suggest that courts should sometimes intentionally trigger a congressional response. See ESKRIDGE, supra note 34, at 153; Elhauge, supra note 34, at 2165 ("[O]ften the best choice is instead a . . . rule that is more likely to provoke a legislative reaction.").
38. This term is from Richard A. Paschal, The Continuing Colloquy: Congress and the Finality of the Supreme Court, 8 J.L. & POL. 143, 143 (1991). Even if the Court is acting in good faith, it may be perceived as seeking to impose its own policy preferences and thus overrides may come at an institutional cost to the Court. See Abner J. Mikva & Jeff Bleich, When Congress Overrules the Court, 79 CAL. L. REV. 729, 747 (1991).
39. For a good overview of the theory and application to a few examples, see Rafael Gely & Pablo T. Spiller, A Rational Choice Theory of Supreme Court Statutory Decisions with Applications to the State Farm and Grove City Cases, 6 J.L. ECON. & ORG. 263 (1990); cf. Pablo T. Spiller & Emerson H. Tiller, Invitations to Override: Congressional Reversals of Supreme Court Decisions, 16 INT''L REV. L. & ECON. 503 (1996) (theorizing that the Court may specifically "invite" an override when it prefers to decide a case in a given manner, e.g., relying on textualism, and is confident that Congress will override the resulting policy choice that the Court also does not prefer). Other models focus on the extent to which the Court responds to the sitting Congress and President and their wishes rather than to the enacting Congress and its wishes. See, e.g., William N. Eskridge, Jr., Reneging on History? Playing the Court/Congress/President Civil Rights Game, 79 CAL. L. REV. 613, 641-66 (1991) (using game theory modeling to demonstrate that statutory interpretation decisions by the Supreme Court are influenced by the policy preferences of the sitting Congress and President); John Ferejohn & Barry Weingast, Limitations of Statutes: Strategic Statutory Interpretation, 80 GEO. L.J. 565, 574-76 (1992) (using Euclidean modeling to demonstrate that judicial review, if done strategically, either leaves outcomes undisturbed or moves outcomes toward the sitting legislature's preferences).
40. See, e.g., Pablo T. Spiller & Rafael Gely, Congressional Control or Judicial Independence: The Determinants of U.S. Supreme Court Labor-Relations Decisions, 1949-1988, 23 RAND J. ECON. 463, 489 (1992) (concluding that court decisions are often constrained by preferences of elected officials). But see, e.g., Jeffrey A. Segal, Separation-of Powers Games in the Positive Theory of Congress and Courts, 91 AM. POL. SCI. REV. 28, 42 (1997) (concluding that Justices typically rule according to their own sincere policy preferences without being constrained by potential congressional response).
41. See BARNES, supra note 4, at 118.
42. See generally, e.g., WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION 54-60 (4th ed. 2007) (summarizing central theorists).
43. See William N. Eskridge, Jr., Politics Without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 VA. L. REV. 275, 283 (1988) (arguing that majoritarian ideals of statutory enactment are flawed, in part, because of rent-seeking) .
44. See, e.g., Victor M. Sher & Carol Sue Hunting, Eroding the Landscape, Eroding the Laws: Congressional Exemptions from Judicial Review of Environmental Laws, 15 HARV. ENVTL. L. REV. 435, 487-89 (1991) (describing how industry representatives have lobbied successfully for overrides that provide project-specific exemptions from environmental laws).
45. Eskridge, supra note 2, at 332 n.1 (emphasis added).
46. See, e.g., BARNES, supra note 4, at 76-78 (using Eskridge's data but cross-referencing it with other stuthes and an independent Lexis search); Lori Hausegger & Lawrence Baum, Behind the Scenes: The Supreme Court and Congress in Statutory Interpretation, in GREAT THEATRE: THE AMERICAN CONGRESS IN THE 1990S, at 224, 225 n.1, 227 (Herbert F. Weisberg & Samuel C. Patterson eds., 1998) (using Eskridge's data but extending analysis through 1996).
47. Stuthes before 1975 typically found very few overrides by Congress. See Eskridge, supra note 2, at 338; see also, e.g., Beth Henschen, Statutory Interpretations of the Supreme Court: Congressional Response, 11 AM. POL. Q. 441, 445 (1983) (finding very few overrides of antitrust and labor legislation between 1950 and 1972).
48. This term is derived from "statutorification," coined by Guido Calabresi. CALA-BRESI, supra note 35, at 1.
49. See Eskridge, supra note 2, at 339-40 (discussing the significant correlation between the increase in overrides and the size of congressional staffs). He also suggests that increases in the number of lower federal court decisions, omnibus bills, and organized interest group activity contributed to the rapid growth in overrides. Id. at 338.
50. Hausegger & Baum, supra note 46, at 224.
51. See Eskridge, supra note 2, at 342 tbl.3 (finding that the judiciary committee held hearings on 38% of Supreme Court statutory decisions that fell within its jurisdiction between 1977 and 1983); Staudt et al., supra note 3, at 1352-53 (finding 54% of Supreme Court tax decisions were discussed in some fashion).
52. Eskridge, supra note 2, at 338; cf. BARNES, supra note 4, at 197-209 app. (listing overrides, including many that are overrides of circuit court decisions); Daniel J. Bus-sel, Textualism's Failures: A Study of Overruled Bankruptcy Decisions, 53 VAND. L. REV. 887, app. at 930-38 (2000) (listing overrides of bankruptcy decisions, including significant numbers of lower court decisions).
53. See generally Brudney, supra note 5, at 5 (discussing this phenomenon in detail).
54. Eskridge, supra note 2, at 335-36, 338 tbl.l.
55. See, e.g., Hausegger & Baum, supra note 46, at 238 (finding that Congress has overridden at least 5.6% of Supreme Court decisions in the 1978-1989 Terms).
56. See Brudney, supra note 5, at 21.
57. See ESKRIDGE ET AL., supra note 42, at 24-38.
58. Factors that typically are found to increase the likelihood of a congressional response include the extent to which organized interest groups care about the issue, whether the U.S. government is a losing party, and whether the decision was nonunanimous. See, e.g., Hausegger & Baum, supra note 46, at 236-37; Beth M. Hen-schen & Edward I. Sidlow, The Supreme Court and the Congressional Agenda-Setting Process, 5 J.L. & POL. 685, 690-91 (1989); Virginia A. Hettinger & Christopher Zorn, Explaining the Incidence and Timing of Congressional Responses to the U.S. Supreme Court, 30 LEGIS. STUD. Q. 5, 10-14 (2005); Joseph Ignagni & James Meernik, Explaining Congressional Attempts to Reverse Supreme Court Decisions, 47 POL. RES. Q. 353, 358-59, 361 (1994); Harry P. Stumpf, Congressional Response to Supreme Court Rulings: The Interaction of Law and Politics, 14 J. PUB. L. 377, 391-92 (1965).
59. See BARNES, supra note 4, at 16.
60. Johnson v. Transp. Agency, 480 U.S. 616, 672 (1987) (Scalia, J., dissenting).
61. See id. at 671-72; see also, e.g., William N. Eskridge, Jr., Interpreting Legislative Inaction, 87 MICH. L. REV. 67, 90-108 (1988) (discussing the various problems that result when inferring intent from legislative inaction); Marshall, supra note 27, at 186-96 (attributing acquiescence to four factors: ignorance, inertia, interpretational ambiguity, and irrelevance). But see, e.g., Johnson, 480 U.S. at 629 n.7 (considering Congress' failure to enact an override significant where the prior decision was widely publicized and there were no override bills proposed).
62. See BARNES, supra note 4, at 76-77, 84.
63. Intracircuit disagreement is defined as cases in which there are either reversals of a lower court decision or a dissent on appeal; " significant" intracircuit dissensus is defined as the presence of multiple dissents and reversals, not merely an isolated dissent or reversal. Id. at 84-85.
64. Id. at 146.
65. Id. at 90 fig.4.1 (finding forty-nine cases of dissensus and fifty-one cases of consensus).
66. Id. at 91 fig.4.2 (finding twenty-one cases of dissensus and no cases of consensus).
67. Id. (finding twenty-three cases of dissensus and forty-five cases of consensus).
68. Id. at 169, 171.
69. Id. at 169.
70. Influential discussions of precedent and the rationales that underlie the rule of stare decisis in both American and British law include: LEVI, supra note 33, at 2; PRECEDENT IN LAW (Laurence Goldstein ed., 1987); Earl Maltz, The Nature of Precedent, 66 N.C. L. REV. 367 (1988); Schauer, supra note 9; A.W.B. Simpson, The Ratio Decidendi of a Case and the Doctrine of Binding Precedent, in OXFORD ESSAYS IN JURISPRUDENCE 148 (A.G. Guested., 1961).
71. The precise meaning of holding, ratio decidendi, and dictum has long been a subject of much dispute. See Maltz, supra note 70, at 372 & n.21.
72. See generally Peter M. Tiersma, The Textualization of Precedent, 82 NOTRE DAME L. REV. 1187, 1190-1247 (2007) (discussing the evolution of this process). Similarly, Earl Maltz suggests that precedent may be reframed as including the general doctrine of the decision (that is, judicial conventions that are at play but that are not explicitly linked to the substantive scope of the decision), the specific doctrine of the decision (the rule of law that the court describes as controlling the particular matter), and the rationale (the reasons given by the court as supporting the specific doctrine announced in the case). See Maltz, supra note 70, at 373-83.
73. See Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78 NOTRE DAME L. REV. 1075, 1085-86 (2003).
74. See, e.g., Stefanie A. Lindquist & Frank B. Cross, Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent, 80 N.Y.U. L. REV. 1156, 1161 n.21 (2005).
75. Marshall, supra note 27, at 218.
76. See Murphy, supra note 73, at 1085-86.
77. Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989).
78. See, e.g., Lindquist & Cross, supra note 74, at 1159-61 (summarizing several scholars on precedents); Schauer, supra note 9, at 595-99 (same).
79. See Lindquist & Cross, supra note 74, at 1164-65 (summarizing several scholars on precedent).
80. Boumethene v. Bush, 128 S. Ct. 2229, 2265 (2008) ("When interpreting a statute, we examine related provisions in other parts of the U.S. Code.").
81. See, e.g., Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (plurality opinion) ("[W]hen Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.").
82. See, e.g., id. at 240 (plurality opinion) (applying a 1971 interpretation of a statute enacted in 1964 to a related statute enacted in 1967). But see id. at 260 (O'Connor, J., concurring) (criticizing the plurality's approach on this point).
83. For example, Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), addressed several important issues in employment discrimination law. One was the liability standard for "mixed-motive" claims. Id. at 252. The Supreme Court's resolution of the issue was overridden by Congress in the 1991 Civil Rights Act. See infra Part III.C. Another was that decisions based on gender-based stereotypes could be actionable under Title VII. Price Waterhouse, 490 U.S. at 250-52. The 1991 Civil Rights Act did not in any way disturb this holding and it unquestionably remains persuasive precedent today. See, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 119-20 (2d Cir. 2004).
84. See J.M. BARRIE, PETER PAN AND WENDY 17-33 (1911).
85. I use "rationale" here and below to mean reasoning that analyzes the specific statutory language in question, not general canons of statutory interpretation. Cf. Maltz, supra note 70, at 373-83 (distinguishing between what he classifies as "general doctrine," such as canons of construction, that is not linked to the substantive statutory language and "rationales").
86. Of course, there is significant disagreement among judges and commentators regarding the extent to which legislative history should be consulted in statutory interpretation. For two influential discussions, see ANTONIN SCALIA, A MATTER OF INTERPRETATION 29-37 (1997) (arguing against use); Stephen Breyer, On the Uses of Legislative History in Interpreting Statutes, 65 S. CAL. L. REV. 845, 847 (1992) (arguing for careful use); and also see ESKRIDGE ET AL., supra note 42, at 990 n.j (collecting scholarly commentary on both sides of the debate). To the extent that judges are willing to consult legislative history, committee reports are generally considered particularly authoritative indications of congressional intent, in part because legislators often rely upon the summary of legislation they provide. See id. at 981-83; see also Nourse & Schacter, supra note 23, at 607 (providing an empirical study documenting reliance on committee reports by members of Congress).
87. See infra text accompanying notes 196-212.
88. BLACK'S LAW DICTIONARY 620 (8th ed. 2004).
89. See infra notes 197-202 and accompanying text.
90. U.S. 244 (1994).
91. U.S. 298 (1994).
92. Landgraf, 511 U.S. at 258-59.
93. Id. at 259.
94. Id. at 265.
95. Id. at 304.
96. Rivers, 511 U.S. at 309-10.
97. Id. at 310.
98. The Court specifically cited specific modifications regarding the retroactivity provisions and the purposes language made from a version of the bill that was vetoed in 1990. See id. at 307-08; see also infra notes 120-21 and accompanying text.
99. Rivers, 511 U.S. at 312-13 (emphasis added).
100. Id. at 313 n.12.
101. Id. at 304 (internal quotation marks omitted).
102. See supra note 68 and accompanying text.
103. See BARNES, supra note 4, at 171; see also U.S. CONST, amend. XIV, § 1 ("No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.").
104. U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp. 2008).
105. Id. § 2000e-2.
106. Id. §2000e-3(a).
107. Pub. L. No. 90-202, 81 Stat 602 (codified as amended at 29 U.S.C.A. §§ 621-624 (West 2000 & Supp. 2008)).
108. U.S.C.A. § 623.
109. Pub. L. No. 101-336, 104 Stat. 327 (codified as amended at 42 U.S.C. §§ 12101-12213 (2000)).
110. sect;§ 101-108, 104 Stat. at 330-37 (Title I).
111. U.S.C. §12112 (2000). Title VII also requires employers to reasonably accommodate employees' religious observance. See id. § 2000e(j).
112. Id. § 1981.
113. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 171 (1989) (citing Runyon v. McCrary, 427 U.S. 160, 168 (1976)).
114. See ADMIN. OFFICE OF THE U.S. COURTS, JUDICIAL BUSINESS OF THE UNITED STATES COURTS, 145-47 tbl.C-2 (2007), available at http://www.uscourts.gov/judbus 2007/appendices/C02Sep07.pdf (showing that employment discrimination cases were the most common nonprisoner federal question filing in U.S. district courts).
115. See Staudt et al., supra note 3, at 1351 (showing Title VII, ADA, and ADEA among the most frequendy litigated statutes, although they rank well below the Internal Revenue Code, the Federal Rules of Civil Procedure, and the Bankruptcy Code).
116. The summary that follows was drawn from two extremely detailed accounts of the negotiations that gave rise to the Act. See Reginald C. Govan, Honorable Compromises and the Moral High Ground: The Conflict Between the Rhetoric and the Content of the Civil Rights Act of 1991, 46 RUTGERS L. REV. 1 (1993) (written by a former House Democratic staffer); Peter M. Leibold et al., Civil Rights Act of 1991: Race to the Finish- Civil Rights, Quotas, and Disparate Impact in 1991, 45 RUTGERS L. REV. 1043 (1993) (written by former Senate Republican staffers).
117. Govan, supranote 116, at 23 (quoting Julie Johnson, High Court Called Threat to Blacks, N.Y. TIMES, July 10, 1989, at A14).
118. Id. at 23-24 (quoting Metzenbaum Seeks Reversal of Wards Cove, 131 Lab. Rel. Rep. (BNA) 309, 309 (July 3, 1989)).
119. See Landgraf v. USI Film Prods., 511 U.S. 244, 255 & n.8 (1994).
120. Civil Rights Act of 1991, H.R. 1, 102d Cong. § 2 (1991) (emphasis added); Civil Rights Act of 1990, S. 2104, 101st Cong. § 2 (1990).
121. Civil Rights Act of 1991, Pub. L. No. 102-166, § 3, 105 Stat. 1071, 1071 (emphasis added).
122. See Rivers v. Roadway Express, Inc., 511 U.S. 298, 307-08 (1994).
123. See infra text accompanying notes 152-55.
124. See H.R. REP. NO. 102-40, pts. 1-2 (1991), reprinted in 1991 U.S.C.CA.N. 549.
125. See 137 CONG. REC. 29,045-47 (1991) (memorandum introduced by Sen. Danforuh).
126. See H.R. REP. NO. 101-644, pts. 1-2 (1990); S. REP. NO. 101-315 (1990); H.R. REP. NO. 101-856 (1990) (Conf. Rep.); H.R. REP. NO. 101-755 (1990) (Conf. Rep.).
127. Of course, some prominent judges and commentators contend that legislative history should not be consulted in statutory interpretation. See supra note 86. Although a full discussion of this thorny issue is beyond the scope of this Article, I generally believe that judicious use of legislative history is appropriate in statutory interpretation.
128. S. Ct. 2162 (2007).
129. U.S.C. § 2000e-5(e) (2000).
130. U.S. 900, 902 (1989).
131. Id.
132. Id. at 906-08.
133. U.S. 250 (1980).
134. Id. at 258.
135. U.S. 553 (1977).
136. Id. at 560.
137. U.S. 385 (1986).
138. See id. at 395-96 (Brennan, J., concurring). The per curiam decision of the Court adopted Justice Brennan's reasoning. Id. at 386-87 (per curiam).
139. Lorance, 490 U.S. at 912 n.5. This distinction is somewhat unsatisfying because, although the pay structure in Bazemore was based on a facially discriminatory division of jobs that predated the enactment of Title VII, the pay structure was not "facially" discriminatory when the plaintiffs brought suit.
140. Lorance, 490 U.S. at 917 (Marshall, J., dissenting) (quoting Del. State Coll. v. Ricks, 449 U.S. 250, 257-58 (1980)).
141. Id. at 916-17.
142. Id. at 915.
143. Id. at 914.
144. Civil Rights Act of 1991, Pub. L. No. 102-166, § 112, 105 Stat. 1071, 1079 (codified at 42 U.S.C. § 2000e-5 (2000)).
145. CONG. REC. 29,047 (1991) (memorandum introduced by Sen. Danforth).
146. Id.
147. H.R. REP. NO. 102-40, pt. 2, at 22-24, 40-41 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 715-18, 733-35. The House bill would have modified the time limit provision to include a general rule that claims must be brought within the specified time after they have "occurred" or have "been applied to affect adversely the person aggrieved, whichever is later." H.R. 1, 102d Cong. § 7 (1991). This language largely tracks that which passed both houses in 1990. See S. 2104, 101st Cong. § 7 (1990). It obviously would have made it clearer that Lorance's rationale was not to be extended to other contexts, but it arguably would have also dramatically expanded potential liability for all kinds of other actions. Thus, particularly given the Senate sponsors' interpretative memorandum, see supra note 125, the ultimate failure to enact this broader language should not be understood as clear congressional intent to cabin the override specifically to seniority systems and leave unchallenged the general rationales of Lorance.
148. Ledbetter v. Goodyear Tire & Rubber Co., 421 F.3d 1169, 1175-76 (11th Cir. 2005).
149. Id. at 1180, 1184.
150. Id. at 1169.
151. Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2165 (2007).
152. Id. at 2169 n.2.
153. Id.
154. Id.
155. Id. (quoting id. at 2183 (Ginsburg, J., dissenting)).
156. Id. at 2173.
157. Id. at 2183 (Ginsburg, J., dissenting).
158. Id. (alteration in original) (quoting Lorance v. AT&T Techs., 490 U.S. 900, 914 (1989) (Marshall, J., dissenting)).
159. Id. at 2183-84 (quoting, inter alia, the Senate memorandum discussed in the text accompanying note 125). Justice Ginsburg's support for her contention that Congress intended to generalize Bazemore is rather puzzling. She relies upon a Senate committee report that accompanied the 1990 bill. Id. (quoting S. Rep. 101-315, at 54 (1990)). However, although Ginsburg characterizes the 1991 Act as "in all material respects identical to the proposed 1990 Act," id., in fact the version of the legislation passed by the Senate in 1990 was more explicit about generalizing the override (it was identical to the broader language that passed in the House in 1991). See supra note 147. The language Ginsburg quotes regarding Bazemore was identified as explaining this more general provision, not the specific reference to seniority systems ultimately enacted in 1991.
160. See, e.g., Cox v. City of Memphis, 230 F.3d 199, 203 (6th Cir. 2000) ("Lorance stands for the proposition that 'the distinction does not turn on the type of discrimination, but on whether the practice at issue is part of, or a repetition of, a past discriminatory act ....'" (quoting Anderson v. City of Bristol, 6 F.3d 1168, 1175 (6th Cir. 1993))); Lettis v. U.S. Postal Serv., 39 F. Supp. 2d 181, 195 (E.D.N.Y. 1998) (quoting Lorance, 490 U.S. at 407, without acknowledging the 1991 amendments, for the proposition that in determining when a statute of limitations begins to run, "the proper focus is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful" (internal quotation marks omitted)).
161. U.S. 642 (1989).
162. The most prominent example of Wards Cove as a shadow precedent in a related statute is the Supreme Court's use of it to interpret the ADEA in Smith v. City of Jackson, 544 U.S. 228, 240 (2005) ("While the relevant 1991 amendments expanded the coverage of Tide VII, they did not amend the ADEA or speak to the subject of age discrimination. Hence, Wards Cove's pre-1991 interpretation of Title VH's identical language remains applicable to the ADEA."). The Supreme Court subsequendy characterized this statement as meaning only that disparate impact claims are cognizable under the ADEA and that the plaintiff-employee has the burden of identifying particular practices that cause the disparate impact. See Meacham v. Knolls Atomic Power Lab., 128 S. Ct. 2395, 2404-07 (2008). For the application of Lorance to other statutes, see, for example, Huels v. Exxon Coal USA, Inc., 121 F.3d 1047, 1050 n.1 (7fh Cir. 1997) (which applies Lorance to an ADA claim), and Casteel v. Executive Bd. of Local 703 of the International Brotherhood of Teamsters, 272 F.3d 463, 467 (7th Cir. 2001), which applies Lorance to an ADEA claim.
163. Most commentators argue against applying the overridden precedents to other statutes. See, e.g., Robert Belton, Mixed-Motive Cases in Employment Discrimination Law Revisited: A Brief Updated View of the Swamp, 51 MERCER L. REV. 651, 664 (2000) (arguing that Price Waterhouse should not apply to the ADA); Martin J. Katz, Unifying Disparate Treatment (Really), 59 HASTINGS L.J. 643, 664-81 (2008) (arguing that courts should stop applying Price Waterhouse to other statutes); Seam Park, Comment, Curing Causation: Justifying a "Motivating-Factor" Standard Under the ADA, 32 FLA. ST. U. L. REV. 257, 273-75 (2004) (arguing that Price Waterhouse should not be applied to the ADA); Jamie Darin Prenkert, Bizarro Statutory Stare Decisis, 28 BERKELEY J. EMP. & LAB. L. 217, 247 (2007) (arguing that the Supreme Court erred in suggesting Wards Cove applied to the ADEA). But see John L. Flynn, Note, Mixed-Motive Causation Under the ADA: Linked Statutes, Fuzzy Thinking and Clear Statements, 83 GEO. L.J. 2009, 2035-37 (1995) (arguing that Price Waterhouse should apply to the ADA).
164. U.S. 228, 253-55 (1989).
165. U.S.C. § 2000e-2(a) (2000) (emphasis added).
166. Price Waterhouse, 490 U.S. at 244-45.
167. See, e.g., Fakete v. Aetna, Inc., 308 F.3d 335, 337 n.2 (3d Cir. 2002).
168. Price Waterhouse, 490 U.S. at 276 (O'Connor, J., concurring). There was also a concurrence by Justice White that largely tracks the standards applied by Justice O'Connor. Id. at 258-60 (White, J., concurring). A dissent by Justice Kennedy, joined by Justices Scalia and Rehnquist, would have required a showing that the illegitimate factor made a "difference" in the decision ("but for" causation) and then followed the burden-shifting laid out in Texas Department of Community Affairs v. Bur-dine, 450 U.S. 248, 252-56 (1981). See Price Waterhouse, 490 U.S. at 281, 286 (Kennedy, J., dissenting).
169. See Price Waterhouse, 490 U.S. at 244-45; id. at 276-77 (O'Connor, J., concurring).
170. U.S.C. §2000e-2(m).
171. Id. § 2000e-5(g) (2) (B) (permitting declaratory and certain injunctive relief, as well as attorney's fees, but not damages or orders of reinstatement).
172. H.R. REP. NO. 102-40, pt. 1, at 47 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 585.
173. H.R. REP. NO. 102-40, pt. 2, at 4 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 696-97.
174. Martin Katz compiles the mixed case law on the issue under the ADA, ADEA, and Tide VII retaliation claims, as well as § 1981 and the Family and Medical Leave Act. See Katz, supra note 163, at 647 n.22, 650 n.31.
175. For ADEA claims, see, for example, Gross v. FBL Financial Services, Inc., 526 F.3d 356, 361-62 (8th Cir. 2008); Glanzman v. Metropolitan Management Corp., 391 F.3d 506, 512 n.3 (3d Cir. 2004); Equal Employment Opportunity Commission v. Warpeld-Rohr Casket Co., 364 F.3d 160, 164 n.2 (4th Cir. 2004); Lewis v. Young Men's Christian Ass'n, 208 F.3d 1303, 1305 & n.2 (11th Cir. 2000) (per curiam), each of which apply Price Waterhouse to ADEA mixed-motive age claims or mixed-motive retaliation claims. But see Fast v. S. Union Co., 149 F.3d 885, 889 (8th Cir. 1998) (applying the "motivating factor" standard enacted in the 1991 CRA). For Title VII retaliation claims, see, for example, Matima v. Celli, 228 F.3d 68, 80-81 (2d Cir. 2000), Kubicko v. Ogden Logistics Services, 181 F.3d 544, 553 n.8 (4th Cir. 1999), Medlock v. Ortho Biotech Inc., 164 F.3d 545, 549-51 (10th Cir. 1999).
176. See, e.g., Parker v. Columbia Pictures Indus., 204 F.3d 326, 337 (2d Cir. 2000) (requiring a showing that disability was a motivating factor in a decision); Foster v. Arthur Andersen, LLP, 168 F.3d 1029, 1033-34 (7th Cir. 1999) (same); Baird v. Rose, 192 F.3d 462, 468-70 (4th Cir. 1999) (same). But see Garcia v. S.U.N.Y. Health Scis. Ctr., 280 F.3d 98, 112 (2d Cir. 2001) (suggesting, without clearly deciding, that the analysis might be governed by Price Waterhouse); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1076 (11th Cir. 1996). There is also some variance regarding whether mixed-motive claims may be brought under the ADA at all. See Macy v. Hopkins County Sch. Bd., 484 F.3d 357, 363 n.2 (6th Cir. 2007) (discussing this issue and noting that all circuits but the 6th permit mixed-motive claims).
177. Parker, 204 F.3d at 337.
178. See Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 174 (2d Cir. 2006).
179. See, e.g., Woodson v. Scott Paper Co., 109 F.3d 913, 934 (3d Cir. 1997).
180. Id.
181. Id.
182. Id. at 934 n.25 (quoting H.R. REP. NO. 104-20, pt. 1, at 47 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 585) (finding the House Report unpersuasive because it referred to other "statutes" rather than other parts of Tide VII).
183. Id. at 934.
184. U.S. 125 (1976).
185. U.S. 484 (1974).
186. U.S. at 135 (quoting Geduldig, 417 U.S. at 496-97).
187. Id. at 139.
188. Id. at 161-62 (Stevens, J., dissenting).
189. Id. at 148-49 (Brennan, J., dissenting) (quoting Geduldig, 417 U.S. at 496 n.20) (citations omitted).
190. Id. at 146-47.
191. Pub. L. No. 95-555, 92 Stat. 2076 (codified at 42 U.S.C. § 2000e(k) (2000)).
192. sect; 1, 92 Stat. at 2076.
193. H.R. REP. NO. 95-948, at 2 (1978), reprinted in 1978 U.S.C.C.A.N. 4749, 4750.
194. Id.
195. S. REP. NO. 95-331, at 2-3 (1977).
196. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 676 (1983) (citation omitted).
197. Id. at 678-79 & n.17 (cataloguing references in the PDA's legislative history to the Gilbert dissents' reasoning and to a desire to "restore" the law).
198. See supra notes 182-98 and accompanying text.
199. Martinez v. N.B.C. Inc., 49 F. Supp. 2d 305, 309 (S.D.N.Y. 1999).
200. Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990), aff'd, 951 F.2d 351 (6th Cir. 1991) (unpublished table decision). The Sixth Circuit decision neither approves nor disapproves of the district court's analysis regarding Gilbert.
201. Wallace, 789 F. Supp. at 869.
202. Id. at 870; see also, e.g., Fejes v. Gilpin Ventures, Inc., 960 F. Supp. 1487, 1492 (D. Colo. 1997) (finding that breastfeeding is not a "medical condition" under the PDA).
203. F.3d 936 (8th Cir. 2007). Decisions by district courts considering the issue are split. See id. at 940 n.l (providing an overview of recent district court decisions regarding whether Tide VII "requires companies to provide coverage of contraception").
204. Id. at 942.
205. See id. at 943-45.
206. Id. at 944-45 & n.5.
207. See, e.g., Cummins v. Illinois, No. 2002-cv-4201-JPG, 2005 U.S. Dist. LEXIS 42634, at *12-14 (S.D. Ill. Aug. 30, 2005).
208. Union Pacific, 479 F.3d at 945-49 (Bye, J., dissenting).
209. F. Supp. 2d 1266, 1270 (W.D. Wash. 2001).
210. Id.
211. Id. at 1271.
212. See U.S. Equal Employment Opportunity Comm'n, Decision on Coverage of Contraception (Dec. 14, 2000), http://www.eeoc.gov/policy/docs/decision- cqntra-ception.html.
213. S. Ct. 1951 (2008).
214. U.S. 164 (1989).
215. U.S.C. § 1981(a) (2000).
216. U.S. at 180-181. The Court also sua sponte requested that the parties brief whether a prior decision, holding that § 1981 was applicable to private actors, should be reconsidered but ended up upholding the prior decision on stare decisis grounds. See id. at 172-75.
217. Id. at 180.
218. Id. at 189 (Brennan, J., dissenting).
219. Id. at 206.
220. Id. at 206, 211.
221. Civil Rights Act of 1991 § 101, 42 U.S.C. § 1981(b) (2000). This language was found not only in S. 1745, 102d Cong. (1991) (enacted), the bill that was ultimately enacted, but also in H.R. 1, 102d Cong. (1991), the Democratic-sponsored bill that passed the House.
222. CONG. REC. 29,045-47 (1991) (memorandum introduced by Sen. Danforth).
223. H.R. REP. NO. 102-40, pt. 1, at 92 (1991), reprinted in 1991 U.S.C.C.A.N. 549, 630.
224. CBOCS West, Inc. v. Humphries, 128 S. Ct. 1951, 1954 (2008).
225. See 29 U.S.C. § 623(d) (2006) (providing a separate antiretaliation provision in the ADEA); 42 U.S.C. § 2000e-3(a) (2000) (providing a separate antiretaliation provision within Title VII); id. § 12203(a)-(b) (providing a separate antiretaliation provision in the ADA); Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 63 (2006) ("There is strong reason to believe that Congress intended the differences that [separate retaliation and discrimination statutes] suggests ....").
226. CBOCS, 128 S. Ct. at 1961.
227. Id. at 1958.
228. Id. at 1955.
229. Id. at 1965 (Thomas, J., dissenting).
230. U.S. 229 (1969). The Court also referenced its more recent decision in Jackson v. Birmingham Board of Education, 544 U.S. 167, 176-77 (2005), which relied upon Sullivan to find that Title IX also permits retaliation claims not withstanding its lack of explicit language regarding retaliation. See CBOCS, 128 S. Ct. at 1955, 1957-59.
231. CBOCS, 128 S. Ct. at 1955-56.
232. See id. at 1956 (citing Choudhury v. Polytechnic Inst, of N.Y., 735 F.2d 38, 42-43 (2d Cir. 1984)); Goff v. Cont'l Oil Co., 678 F.2d 593, 598-99 (5th Cir. 1982), overruled by Carter v. S. Cent. Bell, 912 F.2d 832 (5th Cir. 1990); Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1270 (6th Cir. 1977)).
233. CBOCS, 128 S. Ct. at 1955-56 (citing Walker v. S. Cent. Bell Tel. Co., 904 F.2d 275, 276 (5th Cir. 1990) (per curiam); Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1534-35 (11th Cir. 1990) (per curiam); Overby v. Chevron USA, Inc., 884 F.2d 470, 473 (9th Cir. 1989).
234. Id. at 1959.
235. Id. at 1957; see also supra note 223 and accompanying text (referencing a House Report which stated the 1991 amendment was intended to reinstate retaliation claims).
236. See supra notes 152-56 and accompanying text.
237. See supra notes 98-100 and accompanying text; see also Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 377-83 (2004) (holding for purposes of a federal statute of limitations that a claim under § 1981 concerning postformation conduct is brought pursuant to legislation "enacted" after 1990).
238. S. Ct. at 1954-58.
239. Id. at 1963 (Thomas, J., dissenting).
240. Humphries v. CBOCS West, Inc., 474 F.3d 387, 409 (7th Cir. 2007) (Easter-brook, C.J., dissenting).
241. Id.
242. See BARNES, supra note 4, at 169, 171.
243. See supra note 78 and accompanying text.
244. See, e.g., SCALIA, supra note 86.
245. See, e.g., Marshall, supra note 27, at 211-15.
246. There might be some constitutional question regarding whether Congress could prospectively dictate future judicial interpretation, see infra note 258, but such statements would certainly help signal congressional intent.
247. See, e.g., Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2169 n.2 (2007).
248. See generally James J. Brudney & Corey Ditslear, The Decline and Fall of Legislative History ? Patterns of Supreme Court Reliance in the Burger and Rehnquist Eras, 89 JUDICATURE 220 (2006) (documenting declining reliance on legislative history in Supreme Court jurisprudence); see also supra note 86 (describing the debate regarding the extent to which legislative history should direct statutory interpretation).
249. To the extent that courts thus thwart congressional will, such decisions may be ripe for override, a suggestion in accordance widi empirical stuthes finding that opinions that rely exclusively on "plain meaning" of the text are more likely to be overridden. See, e.g., Bussel, supra note 52, at 910 (focusing on bankruptcy decisions exclusively); Eskridge, supra note 2, at 348.
250. See, e.g., Brudney, supra note 5, at 11-16 (discussing the override of a narrow interpretation of an override in the ADEA). In 2008, Congress considered an override of the Ledbetter decision. The bill easily passed the House but fell subject to a filibuster in the Senate. See supra note 13. As Kathryn Eidmann points out, however, the proposed override was written to address only pay discrimination and thus might have failed to end reliance on Ledbetter as a precedent in other contexts. See Kathryn A. Eidmann, Comment, Ledbetter in Congress: The Limits of a Narrow Legislative Override, 117 YALE L.J. 971, 973 (2008). In other words, even if a comparable bill were to pass, it likely would leave Ledbetter standing as a shadow precedent.
251. Prenkert, supra note 163, at 255. In a different article, Prenkert advocates that Congress amend all "disparate treatment" statutes to make clear that the 1991 CRA's mixed-motive standard applies. See Jamie Darin Prenkert, The Role of Second-Order Uniformity in Disparate Treatment Law: McDonnell Douglas 's Longevity and the Mixed-Motive Mess, 45 AM. BUS. L.J. 511, 559-61 (2008).
252. See, e.g., Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 935-36 (2d Cir. 1988) (recognizing that Tide VII and Tide VIII, the Fair Housing Act, are typically interpreted similarly).
253. See, e.g., Hayut v. State Univ. of N.Y., 352 F.3d 733, 744 (2d Cir. 2003) (stating that hostile environment claims under Title IX "are governed by traditional Title VII 'hostile environment' jurisprudence").
254. Cf. Brudney, supra note 5, at 20-40 (discussing such opportunity costs).
255. See supra notes 184-97 and accompanying text.
256. See supra notes 196-97 and accompanying text.
257. U.S.C. § 2000e(k) (2000).
258. See generally Nicholas Quinn Rosenkranz, Federal Rules of Statutory Interpretation, 115 HARV. L. REV. 2085 (2002) (advocating that Congress adopt principles of statutory interpretation and addressing potential constitutional and jurisprudential objections to the suggestion). But see, e.g., Larry Alexander & Saikrishna Prakash, Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation, 20 CONST. COMMENT. 97 (2003) (questioning whether Congress has the power to dictate courts' prospective interpretations). There are similar debates regarding whether Congress has the power to abrogate stare decisis with respect to constitutional decisions. Compare, e.g., Michael Stokes Paulsen, Abrogating Stare Decisis by Statute: May Congress Remove the Precedential Effect of Roe and Casey ?, 109 YALE L.J. 1535 (2000) (arguing that it may), with Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 CONST. COMMENT. 191 (2001) (arguing that it may not).
259. See supra Parts III.B & III.C.
260. See supra note 61 and accompanying text; cf. Mid-Con Freight Sys., Inc. v. Mich. Pub. Serv. Comm'n, 545 U.S. 440, 468 (2005) (Kennedy, J., dissenting) ("Instead of heeding what Congress actually said, the Court relies on . . . dubious inferences from legislative silence to impose the Court's view . . . .").
261. See supra note 61 and accompanying text.
262. See supra notes 179-83.
263. This is similar to a proposal made by Jamie Prenkert specifically with respect to ending reliance on Wards Cove in other statutes. See Prenkert, supra note 163, at 263.
264. To some extent, this proposal could be said to rest on the interpretive fiction that the sitting Congress can "know" the intentions of the enacting Congress. Cf. William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U. PA. L. REV. 171, 171 (2000) (discussingjudges' tendency to imagine that Congress expresses itself in an "authoritative way" when engaging in statutory interpretation, even "where statutes were enacted by different sessions of Congress, arose out of different contexts, and concerned different subjects"). Alternatively, the proposal could rest on an understanding that the sitting Congress, by enacting an override, can reinterpret the preexisting language. Significantly, however, since the enacting Congress no longer exists, the question is whether the interpretation of the preexisting language is presumptively governed by a judicial interpretation (that the sitting Congress has at least partially reputhated) or by the sitting Congress. On balance, given that choice and the general principles of legislative supremacy, it seems appropriate to follow legislative signals rather than judicial signals.
265. See, e.g., McNally v. United States, 483 U.S. 350, 359-60 (1987) ("[W]hen there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in a clear and definite language.").
266. See, e.g., 42 U.S.C. § 2000e-2(k) (2000) (partially codifying and partially overriding Wards Cove).
267. U.S.C. §§ 1-7 (2006).
268. Analysis of such legislative history should be sensitive to the dangers implicit in consideration of post-enactment legislative history. See generally Brudney, supra note 5.
269. This is similar to concerns frequently leveled regarding reliance on legislative history. See, e.g., SCALIA, supra note 86, at 34-35 (asserting that committee reports cannot be assumed to represent the will of both houses). But cf. Nourse & Schacter, supra note 23, at 605-10 (presenting an empirical study which suggests checks built into congressional processes mitigate this concern).
270. Of course, there is some reason to believe that the Supreme Court would never adopt the more moderate "rebuttable" presumption rule either. However, given its espoused commitment to legislative supremacy, and that policy ramifications of the general principle would shift over time according to the make-up of the courts and Congress, this seems at least plausible. See supra notes 20-21 and accompanying text.
271. This would be subject to the same limitations regarding constitutional interpretations and aspects of the precedent unrelated to the override.
272. Patterson v. McLean Credit Union, 491 U.S. 164, 173 (1989).
273. See Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 842, 844 (1984). Regulations issued after notice-and-comment rulemaking typically receive full Chevron deference; other forms of agency guidance, that are not intended to speak with "force of law," do not receive Chevron deference but may nonetheless be deemed persuasive. See United States v. Mead Corp., 533 U.S. 218 (2001).
274. This is possible even though the statutory language of the override technically changes what an "unlawful practice" is since this implicitly relates back to conduct "because of" a protected class. Cf. Katz, supra note 163, at 664; Prenkert, supra note 163, at 263-67 (making similar arguments).
275. See supra notes 164-69 and accompanying text.
276. I am not contending that this understanding of Title VII would necessarily require employers to make accommodations, such as additional break time, for an employee who sought to breastfeed or express breast milk, but solely that it would prohibit discrimination (that is, punitive conduct) against an employee for choosing to breastfeed.
277. The majority opinion in Ledbetter, seeking to minimize the significance of Congress' override, states, "Evans and Ricks, on which Lorance relied, and which employed identical reasoning, were left in place, and these decisions are more than sufficient to support our holding today." Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct. 2162, 2169 n.2 (2007) (citation omitted). The question remains, however, are they really?
278. U.S. 101 (2002).
279. Bazemore v. Friday, 478 U.S. 385, 395-96 (1986).
280. Ledbetter, 127 S. Ct. at 2173.
281. See supra text accompanying notes 10-17. It is beyond the scope of this project to document the existence of shadow precedents in other areas of the law. However, informal conversations with colleagues with expertise in other areas of the law suggest that they routinely arise in other contexts as well.
282. If reliance on shadow precedents were unusual in other areas of the law (or in other, less partisan, areas of the law), it could suggest that the practice is the result of judicial activism rather than a good faith misreading of congressional signals. On the other hand, it could also suggest that Congress passes clearer overrides in other contexts. If this were shown to be the case, then it would be more appropriate to place a greater onus on Congress to be similarly clear-again in statutory text-in overrides in the employment discrimination context.
283. Cf. text accompanying supra note 69 (discussing the empirical finding that judicial dissensus regarding the scope of the meaning of overrides is correlated with the extent to which judges' rulings in the area tended to be partisan).
284. Cf. Nourse & Schacter, supra note 23, at 604 (finding that congressional staff members involved in legislative drafting have a general awareness of the courts' statutory interpretation doctrines even though political considerations often play a larger role in drafting decisions).
285. To the extent that Congress could prescribe prospective rules to govern the interpretation of a particular override or a class of overrides, this concern would obviously be less relevant. See supra notes 246, 258 (discussing the constitutional debate regarding Congress' power to dictate judicial interpretation).
286. For example, in enacting the 1991 CRA, Congress was clear that it disagreed with Wards Cove but not whether the precedent Wards Cove itself relied upon was overridden. See Civil Rights Act of 1991 §§ 2-3, 42 U.S.C. § 1981 (2000). Courts have therefore struggled with how to apply the new standard. See Lanning v. Se. Pa. Transp. Auth., 181 F.3d 478, 488-90 (3d Cir. 1999) (reviewing pre- Wards Cove decisions and the ambiguity of the 1991 CRA regarding how to interpret these decisions); see also Earl M. Maltz, The Legacy of Griggs v. Duke Power Co.: A Case Study in the Impact of a Modernist Statutory Precedent, 1994 UTAH L. REV. 1353, 1370-71 (discussing confusion among lower courts regarding the status of pre- Wards Cove case law after the enactment of the 1991 CRA).
287. See, e.g., Samuel R. Bagenstos, The Americans with Disabilities Act As Welfare Reform, 44 WM. & MARY L. REV. 921, 933-36 (2003) (collecting such commentary). Bagenstos himself, however, argues that the judicial interpretations were not inconsistent with the enacting Congress' focus on the ADA as an aspect of welfare reform. See id. at 953-85.
288. ADA Amendments Act of 2008 §§ 2(a)(4)-(5), 42 U.S.C.A. § 12101 note (West 2005 & Supp. 2008).
289. Id. § 4(a), 42 U.S.C.A. § 12102 (West 2005 & Supp. 2008).
290. Id. § 2(b), 42 U.S.C.A. note (West 2005 & Supp. 2008).