The US Supreme Court has just brought down a 5-4 ruling, written by Clarence Thomas, denying workers the right to sue over age discrimination if their union agreement calls for arbitration. As the New York Times says, it’s hard to believe that Congress intended this.
It seems likely that we will see a lot more of this kind of thing, since the Bush Administration has packed the courts with movement conservatives. Fortunately, there is a simple response available, at least in cases of statutory interpretation. Every time the Supreme Court comes out with a decision like this, Congress should pass a tightly worded act, repudiating the Court’s interpretation. Sooner or later, they will get the message.
We had this problem in Australia with a Chief Justice (Garfield Barwick) who continually undermined the tax laws on the basis of an extreme form of textualism. In this case, it wasn’t sufficient to fix the law after he broke it, since new tax dodges arose with great regularity. Eventually Parliament passed amendments to its meta-legislation, the Acts Interpretation Act, stating that the courts should take into account the intention of Parliament as stated in the second reading speech that normally introduces the law. Barwick resigned about the same time.
Of course, this won’t work if the Republican majority on the court relies on constitutional interpretation to strike down legislation. This ought to (but certainly won’t) provoke an outcry from conservative opponents of “judicial activism”. But, as Roosevelt showed, it’s a political struggle in which the courts are not as well-placed as they might seem. A determined legislature with popular backing can make it very hard for courts to defend strained interpretations of the constitution.