Looking to Congress to Protect Our Rights

Written by Robert Justin Lipkin on July 6th, 2007

The Supreme Court term ended dramatically last week, with many constitutional law professors and civil rights advocates lamenting the Court’s turn to the right. On the very last day, in Parents Involved v. Seattle, the Court struck down the race-based programs adopted by the Seattle and Louisville school boards to integrate their school systems, and stopped just short of outlawing any such race-based measures. A couple of weeks before, in Ledbetter v. Goodyear, the Court eviscerated Title VII equal pay cases, holding that such cases must be brought within 180 days of the employee’s hiring at the lower pay.

These cases are convincing evidence that the Roberts Court is not a protector of “discrete and insular minorities,” the role that, we were taught in constitutional law classes, best justifies the exercise of judicial review. But what made sense in theory was rarely supported by fact. With the advent of the Roberts Court, it’s time to wake up and recognize the fact that throughout our history, with the marked exception of the Warren Court, the Court has rarely protected those rights and that instead, the primary protector of those rights has been the comparatively majoritarian United States Congress. (I discuss this in my recent book, Enforcing Equality: Congress, the Constitution, and the Protection of Individual Rights.)

Those of us who care about what I call “rights of belonging,” those rights that promote an inclusive vision of who belongs to the national community and that facilitate equal membership in that community, need to stop expecting the federal courts to be the primary arena for protecting those rights, and pay more attention to Congress, the body that is most likely to protect them. There are a number of measures currently pending before Congress that would expand rights of belonging. Such measures include the Hate Crimes Act of 2007, which would create enhanced penalties for violent crimes motivated by hatred based on race, gender, religion or sexual orientation; the Employee Free Choice Act, which would make it easier for unions to organize employees, and the Employee Non-Discrimination Act, which would make it illegal to discriminate in employment on the basis of sexual orientation. All of these measures deserve the same attention from constitutional law scholars and advocates for rights of belonging as the Supreme Court decisions. These measures are compelling examples of “popular constitutionalism” because they represent attempts by members of Congress, the elected representatives of the people, to vindicate the constitutional values of equal protection and equal participation.

The Court’s ruling in Ledbetter provides Congress with another chance to step up to the plate and protect our rights of belonging by amending Title VII to set a realistic  filing date for equal pay cases. Indeed, such a law has already been proposed in Congress. There is ample precedent for this bill: Congress has expanded the statute’s protections twice before to overturn adverse Supreme Court rulings with the Pregnancy Discrimination Act in 1978 and the Civil Rights Restoration Act in 1991. Rather than focusing only on the Court, constitutional law scholars should note that a House Committee approved the Ledbetter Bill on June 27, less than a week after it was introduced. Congress can’t do anything about the Court’s interpretation of the Equal Protection Clause, but it can act to remedy some of the mistakes it has the power to undo. We should expect it to.


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