Amicus Curiae Brief — Smigelski v. Office of Disciplinary Counsel

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No. 01-1368

In the

Supreme Court of the United States

NEVADA DEPARTMENT OF HUMAN RESOURCES. et a/.,

Petitioners,

WILLIAM HIBBS, et a/.,

Respondents

On Writ of Certiorari to The United States

Court of Appeals for the Ninth Circuit

BRIEF OF AMICI] CURIAE THE LAWYERS’

COMMITTEE FOR CIVIL RIGHTS UNDER LAW,

THE NATIONAL ASIAN PACIFIC AMERICAN LEGAL

CONSORTIUM, AND THE NATIONAL ASSOCIATION FOR

THE ADVANCEMENT OF COLORED PEOPLE IN SUPPORT

OF RESPONDENTS WILLIAM HIBBS, et a/

BARBARA R. ARNWINI SIDNEY S. ROSDEITCHER

THOMAS J. HENDERSON Counsel of Record

MICHAEL FOREMAN JOHN W.R. MURRAY

THE LAWYERS’ COMMITTEI PATRICIA E. RONAN

FOR CIVIL RIGHTS UNDER LAW PAUL, WEISS, RIFKIND,

1401 New York Avenue, NW WHARTON & GARRISON

Suite 400 1285 Avenue of the

Washington, DC 20005 Americas

(202) 662-8600 New York, NY 10019-6064

(212) 373-3000

Counsel for Amici Curiae

(Other counse! listed on inside cover)

OCTOBER 25. 2002 |

VINCENT A. ENG DENNIS COURTLAND HAYES

NATIONAL ASIAN PACIFIC ANGELA CICCOLO

AMERICAN LEGAL CONSORTIUM NAACP NATIONAI

1140 Connecticut Avenue, NW HEADQUARTERS

Washington, DC 20036 4805 Mt. Hope Drive

Washington, DC 20036 Baltimore, Maryland

(202) 296-2300 21215-3297

(410) S80-5777

TABLE OF CONTENTS

a ee iil

INTEREST OF ADICT CURIAEG .........0ccccccrccccsrscosersereseesees |

SUMMARY OF ARGUMENT................cccccccccceceeseeeeeerereenes 2

FE Te 6

I. IN REVIEWING THE EXERCISE OF

CONGRESS'S POWER TO REMEDY THE

EFFECTS OF DISCRIMINATION

AGAINST WOMEN, THE COURT

SHOULD APPLY THE SAME “RATIONAL

MEANS” STANDARD THAT IT HAS

CONSISTENTLY APPLIED TO § 5

LEGISLATION ADDRESSED TO THE

INTRACTABLE EFFECTS OF A LONG

HISTORY OF UNCONSTITUTIONAL

TTT vecrenndcnnenesiepesmenenstinnnsoncccscesscscecesosees 6

A. The Congruence and Proportionality Test

Employed in Kimel and Garrett Does Not

Apply When Congress Acts to Remedy

Discrimination Against Groups Protected

by Heightened Scrutiny...................cccccsceeeee 6

B. This Court Reviews § 5 Legislation Enacted

to Remedy the Effects of Discrimination

against Groups Protected by Heightened

Scrutiny under the Deferential “Rational

Means” Standard Derived from

McCulloch v. Maryland ..............0...00000000: 10

C. Even If the Court Requires Legislation

Remedying the Effects of Discrimination

Subject to Heightened Scrutiny to Be

Congruent and Proportional, Such

Legislation Should Be Held to Be

Authorized by § 5 If It Meets the

D. Section 2612(a)(1)(C) of the Family and

Medical Leave Act May Be Viewed As a

Rational Means of Remedying the Effects

of Discrimination Against Women. ............ 18

fl. THE COURT SHOULD RECONSIDER THE

MORE RIGOROUS STANDARD OF

REVIEW THAT IT HAS RECENTLY

APPLIED TO § 5 LEGISLATION TO

DETERMINE CONGRUENCE AND

TD 20

Sea IIIEEE conenennereensntticpnnentniannnntiinttieanininiataiitendsiainieaiies 28

TABLE OF AUTHORITIES

Adarand Constr., Inc. v. Mineta, 534 U.S. 103 (2001)........... l

Bd. of Trs. of the Univ. of Alabama v. Garrett,

See passim

Bradwell v. Illinois, 16 Wall. 130 (1872) ..........c0ccceeseeeeeees 16

Burroughs v. United States, 290 U.S. 534 (1934) .......... 11,27

Califano v. Webster, 430 U.S. 313 (1977).......cccccceceeseereereees 16

City of Boerne v. Flores, 521 U.S. 507 (1997)......... 10, 21, 25

City of Rome v. United States, 446 U.S. 156 (1980).......13, 20

Eastland vy. United States Servicemen's Fund,

421 U.S. 491 (1975S) xccscnneesececcccccccccccccccccceccssssssssseseee 25

Ex parte Virginia, 100 U.S. 339 (1879) ..cccccccccccscsssssssecesseeee 13

FCC v. Beach Communications,

Ds Be Ce teencctnsmcnsnermnmensesenmiceen 12, 21

Field v. Clark, 143 U.S. 649 (1892) ........c.cccccscsseseeseeeeeeseenees 24

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)........cccccccccceeeeeeees 26

Frontiero v. Richardson, 411 U.S. 677 (1973) ..........cccc00+ 16

Garcia v. San Antonio Metro. Transp. Auth.,

as IT iiniienttcnaittinansiteittatiintinmuienmadticmmpi 27

Gravel v. United States, 408 U.S. 606 (1972) ...............0000. 25

Heller v. Doe by Doe, 509 U.S. 312 (1993) ........ccccccccccceeeeees 13

Hibbs v. Nevada Dep't of Human Resources,

273 F.3d 844 (9th Cir. 2001) 000... cccccccccccseeeeeee 17,19

J.E.B. v. Alabama, 511 U.S. 127 (1994) .00.......ccccccccceeeeeeeeee 16

James Everard's Breweries v. Day,

CS 12

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)............. 13

Katzenbach v. Morgan,

384 U.S. 641 (1966).........0..000.... 11, 13, 14-15, 19, 20

Kimel v. Florida Bd. of Regents,

ee ee Ga ertreencncinemcnntnnticriainnatiusinenes passim

Lopez v. Monterey County, 525 U.S. 266 (1999) ...0000...0.0..... l

McCulloch v. Maryland, 4 Wheat. 316 (1819)............. passim

Miller v. Johnson, 515 U.S. 900 (1995) .......0.cccccccccceceececeeeeeeee 9

Mississippi Univ. for Women v. Hogan,

TT 16

Oregon v. Mitchell, 400 U.S. 112 (1970) ................. 13, 14, 20

South Carolina v. Katzenbach,

ee Cs SD ee ccrnteconmniisientnntaninend 4,7, 11, 13, 20

United States v. Ballin, 144 U.S. 1 (1892).........ccccccccecceeeneees 24

United States v. Carolene Prods. Co.,

i 27

United State’ v. Morrison, 529 U.S. 598 (2000) ...............006 7

United States v. Virginia, 518 U.S. 515 (1996).......... 9, 15-16

CONSTITUTION AND STATUTES

Family and Medical Leave Act of 1993,

ge FY ee 1, 5, 6, 18-20

CR, Game, GR BE OA Ci sccccrerrreccsccsenessenensecrnsnrsensescsnnsees 10

eee 24

BB, GR, GI, BOG eB aececscsccnsensmnensnennscsscssnrsencssnenssesencess 25

Fk | passim

MISCELLANEOUS

A. Christopher Bryant & Timothy J. Simeone,

Remanding to Congress: The Supreme

Court's New "On the Record" Constitutional

Review of Federal Statutes,

86 Cornell L. Rev. 328 (2001)... 23, 24, 25

Evan H. Caminker, “Appropriate” Means-Ends

Constraints on Section 5 Power, 53 Stan. L.

Ss Gan UTI risisteithtncssientiiiniitnsanepeetnbinntatcnetemnnenies 11

Philip P. Frickey & Steven S. Smith, Essay, Judicial

Review, The Congressional Process, and the

Federalism Cases: An Interdisciplinary

Critique, 111 Yale L.J. 1707 (2002)............0000 23, 24

John T. Noonan, Jr., NARROWING THE NATION’S

POWER: THE SUPREME COURT SIDES WITH THE

OC 22

Robert C. Post & Reva B. Siegel, Equal Protection by

Law: Federal Antidiscrimination Legislation

after Morrison and Kimel,

dob, FRED eee 26

Michael Selmi, Family Leave and the Gender Wage

Gap, 78 N.C. L. Rev. 707 (2000) .......c.cccccceeseeeeeeeeees 17

INTEREST OF AMICI CURIAE

The Lawyers’ Committee for Civil Rights under Law

(the “Lawyers’ Committee”), The National Asian Pacific

American Legal Consortium (“NAPALC”), and The National

Association for the Advancement of Colored People

(“NAACP”) submit this brief as amici curiae, with the

consent of the parties,' in support of Respondents’ argument

that § 2612(a)(1)(C) of the Family and Medical Leave Act of

1993 (“FMLA”) was validly enacted pursuant to Congress’s

power under § 5 of the Fourteenth Amendment.

The Lawyers’ Committee was formed in 1963 at the

request of President Kennedy in order to involve private

attorneys throughout the country in the national effort to

ensure the civil nghts of all Americans. Toward that end, the

Lawyers’ Committee has been involved as amicus curiae or

counsel in several cases before this Court involving the scope

of Congress’s legislative power under the Civil War

Amendments to remedy the effects of racial discrimination.

See, e.g., Adarand Constructors, Inc. v. Mineta, 534 U.S. 103

(2001); Lopez v. Monterey County, 525 U.S. 266 (1999).

NAPALC is a national non-profit, non-partisan

organization whose mission is to advance the legal and civil

rights of Asian Pacific Americans. Collectively, NAPALC

and its Affiliates, the Asian American Legal Defense and

Education Fund, the Asian Law Caucus and the Asian Pacific

Counsel for amici curiae authored this brief in its entirety. No

person or entity other than amici curiae, their staffs, or their

counsel made a monetary contribution to the preparation of

submission of this brief. Letters of consent to the filing of this

brief have been filed with the Clerk of the Court pursuant to

Supreme Court Rule 37.3.

American Legal Center of Southern California, have over 50

years of experience in providing legal public policy,

advocacy, and community education on discrimination issues.

NAPALC and its Affiliates have a long-standing interest in

addressing matters of discrimination that have an impact on

the Asian Pacific American community, and this interest has

resulted in NAPALC’s participation in a number of amicus

briefs before the courts.

The NAACP is a non-profit membership corporation

that traces its roots to 1909 and was chartered by the State of

New York. The NAACP supports the rights guaranteed by

the Fourteenth Amendment and Congress’s power under § 5

of that Amendment to pass legislation that in certain

circumstances abrogates state sovereign immunity.

Accordingly, the NAACP joins the other amici in filing this

brief and urging affirmance of the decision below.

This Court's interpretation of the scope of Congress's

power to enforce the Fourteenth Amendment through its § 5

powers will directly impact the communities represented by

these amici. Therefore, amici present their views on this

extremely important issue.

SUMMARY OF ARGUMENT

Petitioner's argument rests on the mistaken premise

that the standard of review applicable to legislation enacted

under § 5 of the Fourteenth Amendment to remedy the effects

of an historical pattern of unconstitutional discrimination

against women is the same standard of review that the Court

has recently applied under the rubric of “congruence and

proportionality” to remedial legislation that was enacted to

protect people with characteristics that the court Aas not

previously recognized as having been the subject of a pattern

of discrimination by the States. With regard to these latter

groups, such as the disabled, the Court has closely examined

Congress’s “remedial” efforts to ensure that they are

“congruent and proportional” to a constitutional violation, and

to ensure that Congress is enforcing the Fourteenth

Amendment, rather than expanding its substantive guarantees.

As the Court has recognized, the concerns that have

motivated this more searching inquiry do not exist when

Congress exercises its powers to address the effects of

discrimination on the basis of a classification that receives

heightened scrutiny. See Kimel v. Florida Bd. of Regents, 528

U.S. 62, 83 (2000). The Court developed heightened scrutiny

in response to long and well-established histories of the

States’ unequal treatment of persons on the basis of certain

characteristics, such as race and sex, and because distinctions

based on race or sex are “seldom relevant to the achievement

of any legitimate state interest” and often simply reflect

“prejudice and antipathy.” /d. at 83 (quoting Cleburne vy.

Cleburne Living Center, Inc., 473 U.S. 432, 440 (1985)). In

light of the recognized histories of “difficult and intractable”

effects of such discrimination, the Court has indicated that

Congress may enact “powerful remiedies” to eliminate State-

sponsored discrimination and to prevent its recurrence in the

future. /d. at 89.

When Congress invokes its authority under § 5, there

can be no question that it does so pursuant to the substantive

guarantees of the Fourteenth Amendment where it is acting

against the backdrop of such widely recognized patterns of

constitutional violations. Given the clarity of the

constitutional basis for Congress’s authority, the Court should

defer to Congress’s choices as to what constitutes

“appropriate legislation” to remedy the effects of such

unconstitutional discrimination. U.S. Const., amend. XIV, §

5. See also Kimel, 528 U.S. at 80-81 (“It is for Congress in

the first instance to determin[e] whether and what legislation

is needed to secure the guarantees of the Fourteenth

Amendment.’” (quoting City of Boerne v. Flores, 521 U.S.

507, 536 (1997)). Thus, the more rigorous and less

deferential standard of review that the Court has held to apply

to cases involving groups without a documented, judicially

recognized history of discrimination is not appropriate in the

context of classifications that receive heightened scrutiny.”

Rather, the Court should apply, as it has done with

consistency, the deferential standard of review rooted in Chief

Justice Marshall’s ceminal opinion in McCulloch v.

Maryland, 4 Wheat 316 (1819), which requires only that § 5

legislation be a “rational means” of enforcing the

Amendment’s substantive guarantees. South Carolina v.

Katzenbach, 383 U.S. 301, 324 (1966). Accordingly, even if

the Court uses the rubric of “congruence and proportionality”

in reviewing legislation that seeks to remedy discrimination

subject to heightened scrutiny, such legislation should be

deemed congruent and proportional if it meets the “rational

means” standard.

> ‘Under the “strict scrutiny” standard applied to classifications

based on race, such classifications “are constitutional only if

they are narrowly tailored measures that further compelling

governmental interests.” Kimel, 528 U.S. at 84 (quoting

Adarand Constr., Inc. v. Pefia, 515 U.S. 200, 227 (1995)).

Under the “intermediate scrutiny” standard, classifications

based on gender will be upheld “only if they serve ‘important

governmental objectives and . the discriminatory means

employed’ are ‘substantially related to the achievement of

those objectives.”” Jd. (quoting Mississippi Univ. for Women v.

Hogan, 458 U.S. 718, 724 (1982)). While the standard for

racial classifications is thus more stringent, in both cases, the

standards reflect the Court’s recognition that discrimination on

the basis of race or gender is presumptively a violation of the

Fourteenth Amendment.

Here, the statute at issue, § 2612(a)(1)(C) of the

Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C.

§ 2601 et seg., responds to a pattern of unconstitutional

discrimination, the existence of which the Court has long and

repeatedly acknowledged — specifically, the States’ restriction

of women’s participation in the workforce and creation of

stereotypes that reinforced such discrimination. The proper

standard for review of this legislation, therefore, is the

deferential “rational means” test of McCulloch, which this

legislation satisfies.

In arguing that the Court’s more mgorous Kimel

standard of review has no application to the legislation

involved here, amici curiae do not wish to be understood to

embrace that standard as proper for review of any legislation

enacted by Congress, which, in its judgment, is appropriate to

enforce the Fourteenth Amendment. In addition to the

reasons discussed in the dissenting opinions in Kimel and Bd.

of Trs. of the Univ. of Alabama vy. Garrett, 531 U.S. 356

(2001), amici respectfully submit that this standard, as applied

in recent cases, is premised on an unworkable view of the

legislative process, effectively requires Congress to

dramatically alter the way in which it legislates, and threatens

to violate separation of powers principles by imposing

judicial requirements upon Congress’s legislative procedure.

We, therefore, urge the Court to reconsider the “congruence

and proportionality” standard as applied in cases like Garrett

and Kimel and return to the McCulloch standard, which, until

recently, had been the standard the Court applied to

legislation enacted by Congress under the express powers

conferred upon it by the Constitution.

ARGUMENT

I. IN REVIEWING THE EXERCISE OF

CONGRESS’S POWER TO REMEDY THE

EFFECTS OF DISCRIMINATION AGAINST

WOMEN, THE COURT SHOULD APPLY THE

SAME “RATIONAL MEANS” STANDARD

THAT IT HAS CONSISTENTLY APPLIED TO

§ 5 LEGISLATION ADDRESSED TO THE

INTRACTABLE EFFECTS OF A LONG

HISTORY OF UNCONSTITUTIONAL

DISCRIMINATION

A. The Congruence and Proportionality Test

Employed in Kimel and Garrett Does Not Apply

When Congress Acts to Remedy Discrimination

Against Groups Protected by Heightened Scrutiny

While, for the reasons discussed in Part II of this brief,

amici curiae respectfully disagree with the standard of review

of § 5 legislation reflected in cases such as Kimel and Garrett,

the Court need not reach that issue here. For this case

involves Congress’s power under the Fourteenth Amendment

to enact legislation respecting conduct of the States to which

“heightened scrutiny” applies, and which this Court has

distinguished from legislation like that involved in Kimel and

Garrett proscribing conduct that was subject merely to

“rational basis” review.

Unlike the legislation at issue in Kimel/ and Garrett,

the statute involved here was enacted against the backdrop of

the well-known, long history of unconstitutional

discrimination against women by the States. See 29 U.S.C. §

2601(5) (finding that “due to the nature of the roles of men

and women in our society, the primary responsibility for

family caretaking often falls on women, and _ such

responsibility affects the working lives of women more than it

affects the working lives of men”); infra at 15-17. As this

Court has long acknowledged, women, like racial minorities,

have suffered a “history of purposeful unequal treatment.”

Kimel, 528 U.S. at 83. Accordingly, discrimination against

such groups is presumptively unconstitutional, except in the

unusual case where it could overcome heightened scrutiny. In

reviewing legislation enacted under § 5 to remedy the effects

of such discrimination in the race context, this Court has

consistently applied the deferential standard of review derived

from McCulloch v. Maryland, which the Court has interpreted

to require only that the legislation chosen by Congress be a

“rational means to effectuate” the rights that the Civil War

Amendments guarantee. South Carolina v. Katzenbach, 383

US. at 324.

Recently, this Court has gone beyond the McCulloch

standard and applied a more rigorous standard of review to

congressional legislation only in cases where the groups that

Congress sought to protect had not heretofore been

recognized by the Court as having a history of purposeful

unequal treatment. Although in United States v. Morrison,

529 U.S. 598 (2000), the Court, in dicta, used the terms

“congruence” and “proportionality” in a discussion of the fit

between the relevant provision of the Violence Against

Women Act (“VAWA”) and the injury it was intended to

remedy, Morrison, 529 U.S. at 625-26, the Morrison holding

with respect to § 5 was that VAWA was an unconstitutional

exercise of Congress’s powers because it was not directed “at

any State actor, but at individuals who . . . committed

criminal acts motivated by gender bias.” Jd. at 626. Thus,

there is no tension between the holding in Morrison and the

observations of the Court that groups like those involved in

Kimel and Garrett are “unlike those who suffer discrimination

on the basis of race or gender,” and have not been subjected

to a “history of purposeful unequal treatment.” Kimel, 528

U.S. at 83.

As the Court has emphasized, differential treatment by

the States on the basis of such classifications is subject only

to “rational basis” review, under which the constitutionality

of the use of the classification is presumed, except in cases

where no rational basis for the discrimination can be

discerned. As noted, in Kimel, the Court explicitly

distinguished the legislation before it on this ground,

observing that “[a]ge classifications, unlike governmental

conduct based on race or gender, cannot be characterized as

‘so seldom relevant to the achievement of any legitimate state

interest that laws grounded in such considerations are deemed

to reflect prejudice and apathy,” and that the elderly, “again,

unlike those who suffer discrimination on the basis of race or

gender, have not been subjected to a ‘history of purposeful

unequal treatment.”” Kimel, 528 U.S. at 83 (citations

omitted). Similarly, in Garrett, the Court found it significant

that it had previously determined that disability did not

“qualiffy] as a ‘quasi-suspect’ classification,” and hence, was

subject only to rational basis review. Garrett, 531 U.S. at

366, 367 (noting that under rational basis review, “the burden

is upon the challenging party to negative ‘any reasonably

conceivable state of facts that could provide a rational basis

for the classification.’”) (citations omitted). Thus, the Court

in both Kimel and Garrett found it ambiguous whether the

legislation at issue could “be understood as responsive to, or

designed to prevent, unconstitutional behavior.” Kimel, 528

U.S. at 86 (citing City of Boerne, 521 U.S. at 532). See also

Garrett, 531 U.S. at 366. For that reason, the Court more

closely reviewed the legislative record for evidence of

widespread constitutional violations requiring a remedy under

§ 5.

No such ambiguity exists where Congress legislates

against the intractable effects of racial and gender

discrimination. First, unlike the discrimination at issue in

Kimel and Garrett, discrimination on the basis of race or

gender is subject to heightened scrutiny by this Court for

purposes of the Equal Protection Clause. Because under

heightened scrutiny, the burden of proving a

nondiscriminatory purpose rests upon the State, see United

States v. Virginia, 518 U.S. 515, 533 (1996) (gender); Miller

v. Johnson, 515 US. 900, 920 (1995) (race), such

discrimination is presumed to violate the Equal Protection

Clause. In other words, the Court has recognized that where

racial and gender discrimination occurs, it usually violates the

Fourteenth Amendment and thus, calls for a remedy under

§ 5.

Second, both racial and gender discrimination have

long been acknowledged by the Court to have a “history of

purposeful unequal treatment.” Kimel, 528 U.S. at 83; infra

at 15-17. In contrast, the lack of such “judicial

documentation” in Garrett convinced at least two Justices that

the Americans with Disabilities Act was beyond Congress's

§ 5 power. Garrett, 531 U.S. at 375-76 (“If the States had

been transgressing the Fourteenth Amendment . . ., one would

have expected to find in decisions of the States and . . . the

United States extensive litigation and discussion of the

constitutional violations.”) (concurring opinion of Kennedy,

J., joined by O'Connor, J.). By contrast, in the case of

classifications on the basis of race or gender, the pattern of

unconstitutional conduct that was found wanting in Kime/ and

Garrett has been repeatedly acknowledged by the Court itself,

eliminating any ambiguity, from the outset, as to whether

Congress has an appropriate basis upon which to invoke its

remedial authority under § 5.

In sum, because the Court’s equal protection

jurisprudence has already established that racial and gender

discrimination are presumptively unconstitutional and reflect

an historic pattern of unconstitutional conduct, the need that

the Court perceived in cases such as Kimel and Garrett to go

beyond the McCulloch standard and closely review the

legislative record does not arise.

B. This Court Reviews § 5 Legislation Enacted to

Remedy the Effects of Discrimination against

Groups Protected by Heightened Scrutiny under

the Deferential “Rational Means” Standard

Derived from McCulloch v. Maryland

Section 5 of the Fourteenth Amendment provides:

“The Congress shall have power to enforce, by appropriate

legislation, the provisions of this article.” U.S. Const.,

amend. XIV, § 5. Section 5 “is an affirmative grant of power

to Congress.” Kimel, 528 U.S. at 80. Thus, “‘[iJt is for

Congress in the first instance to determin[e] whether and what

legislation is needed to secure the -guarantees of the

Fourteenth Amendment.’” /d. at 80-81 (quoting City of

Boerne, 521 U.S. at 536). Accordingly, when legislating

under § 5, Congress is not limited to proscribing conduct that

violates the Fourteenth Amendment, but rather, is empowered

“to deter violation of rights guaranteed thereunder by

prohibiting a somewhat broader swath of conduct, including

that which is not itself forbidden by the Amendment's text.”

Kimel, 528 U.S. at 81 (citing City of Boerne, 521 U.S. at 518).

Accord Garrett, 531 U.S. at 365 (citations omitted).

As the Court has long recognized, the Framers of the

Fourteenth Amendment intended to give Congress the same

broad powers of the Necessary and Proper Clause, U.S.

Const. art. I, § 8, cl. 18, in determining “whether and what

legislation is needed” to secure the Amendment's guarantees.

See Katzenbach v. Morgan, 384 U.S. 641, 650 (1966) (citing

Ex parte Virginia, 100 U.S. 339, 345-46 (1879)). Thus, the

“measure of what constitutes ‘appropriate legislation’ under

§ 5” is the broadly deferential standard of review articulated

by Chief Justice Marshall in McCulloch v. Maryland.’

Katzenbach v. Morgan, 384 U.S. at 650-51 (quoting

McCulloch, 4 Wheat at 421). See also South Carolina v.

Katzenbach, 383 U.S. at 326-27 (holding that the McCulloch

standard is “(t]he basic test to be applied in a case involving

§ 2 of the Fifteenth Amendment,” as in “all cases concerning

the express powers of Congress with relation to the reserved

powers of the States.”); Evan H. Caminker, “Appropriate”

Means-Eds Constraints on Section 5 Power, 53 Stan. L. Rev.

1127, 1134-43 (2001).

The Court has interpreted the McCulloch standard to

require only a rational relationship between the ends of the

legislation and Congress’s chosen means. The desirability

of the legislation as a policy matter, or the extent to which

Congress might have chosen other, more narrowly tailored

means, are beyond the scope of the Court’s review. Hence,

“{ijf it can be seen that the means adopted are readily

calculated to attain the end, the degree of their necessity, the

extent to which they conduce to the end, the closeness of the

relationship between the means adopted, and the end to be

attained, are matters for congressional determination alone.”

Burroughs v. United States, 290 U.S. 534, 547-48 (1934)

(citation omitted). This deferential standard is mandated by

* In the famous words of Chief Justice Marshall: “Let the end be

legitimate, let it be within the scope of the constitution, and all

means which are appropriate, which are plainly adapted to that

end, which are not prohibited, but consist with the letter and

spirit of the constitution, are constitutional.” McCulloch, 4

Wheat at 421.

the concept of separation of powers so fundamental to our

constitutional structure. As the Court has acknowledged, any

further scrutiny of legislation that Congress has deemed

necessary and proper “would be to pass the line which

circumscribes the judicial department and to tread upon

legislative ground.” James Everard's Breweries v. Day, 265

U.S. 545, 559 (1924) (citing McCulloch, 4 ‘Wheat. at 423).

The deference due to Congress’s exercise of the

legislative power expressly conferred on it by § 5 is surely

entitled to at least the same deference accorded by this Court

in determining whether congressional legislation (other than

legislation discriminating on the basis of suspect

classifications) violates the equal protection principles of the

Fifth Amendment. In the latter context, the Court has held:

we never require a legislature to articulate its

reasons for enacting a statute, [and] it is

entirely irrelevant for constitutional purposes

whether the conceived reason for the

challenged distinction actually motivated the

legislature. . . . Thus, the absence of

“legislative facts” explaining the distinction

“on the record” . . . has no significance in

rational-basis analysis. ... In other words, a

legislative choice is not subject to courtroom

factfinding and may be based on rational

to this guiding principle of judicial review of

legislation is it possible to preserve to the

legislative branch its rightful independence

and its ability to function.

FCC v. Beach Communications, 508 U.S. 307, 315 (1993)

(reviewing federal Cable Communications Policy Act of

1984) (citing cases). See also Heller v. Doe by Doe, 509 U.S.

312, 319-21 (1993).

From the very outset, the powers conferred on

Congress in enacting “appropriate legislation” under the Civil

War Amendments have been reviewed under the deferential

McCulloch standard. As the Court held over a century ago:

Whatever legislation is appropriate, that is,

adapted to carry out the objects the

amendments have in view, whatever tends to

enforce submission to the prohibitions they

contain, and to secure to all persons the

enjoyment of perfect equality of civil mghts

and the equal protection of the laws against

State denial or invasion, if not prohibited, is

brought within the domain of congressional

power.

Ex parte Virginia, 100 U.S. 339, 345-46 (1879). Consistent

with the principles of the McCulloch standard discussed

above, the Court has determined that legislation enacted

under the Civil War Amendments need only be a “rational

means to effectuate” the nghts that the Amendments contain.

South Carolina v. Katzenbach, 383 U.S. at 324. The Court

has repeatedly affirmed the applicability of the McCulloch

standard to legislation enacted under the Amendments to

remedy racial discrimination. See City of Rome v. United

States, 446 U.S. 156, 175 (1980); Oregon v. Mitchell, 400

U.S. 112, 284 (1970); Jones v. Alfred H. Mayer Co., 392 U.S.

409, 439-44 (1968); Katzenbach v. Morgan, supra, 384 U.S.

at 650; South Carolina v. Katzenbach, 383 U.S. at 326-27.

Thus, the Court has unanimously held that Congress is

empowered to enact antidiscrimination legislation that applies

to the entire Nation without evidence that the discrimination

sought to be remedied exists in every State, because, among

other reasons, “nationwide application may be reasonably

thought appropriate when Congress acts against an evil such

as racial discrimination which in varying degrees manifests

itself in every part of the country.” Oregon v. Mitchell, 400

U.S. at 284 (upholding nationwide ban on literacy tests under

Voting Rights Act Amendments of 1970) (opinion of Stewart,

J., joined by Burger, C.J., and Blackmun, J.).

The Court’s most comprehensive articulation of the

standard to be applied to legislation enacted under § 5 of the

Fourteenth Amendment appears in Katzenbach v. Morgan,

supra. There, the Court held that § 4(e) of the Voting Rights

Act of 1965, which forbade States from denying the vote to

covered persons on the yround of inability to read or write

English, was proper §5 legislation, notwithstanding the

Court’s previous determination that literacy tests in

themselves are not unconstitutional. See Katzenbach vy.

Morgan, 384 U.S. at 643-44, 646. Consistent with the

McCulloch standard, the Court did not rely on whether

Congress had amassed evidence of the need for the provision

or whether § 4(e) was sufficiently tailored to minimize

intrusion upon the sovereignty of the States. Rather, the

Court noted that the only relevant considerations on its review

were: “whether § 4(e) may be regarded as an enactment to

enforce the Equal Protection Clause, whether it is ‘plainly

adapted to that end’ and whether it is not prohibited by but is

consistent with ‘the letter and spirit of the constitution.”” /d.

at 651.

Applying these factors, the Court found that the

provision “may be regarded as an enactment to enforce the

Equal Protection Clause” because it “may be viewed as a

measure to secure for the Puerto Rican community residing in

New York nondiscriminatory treatment by government.” /d.

at 652. In addition, it could be “readily seen as ‘plainly

es —

—_

adapted’ to furthering the aims of the Equal Protection

Clause” because its “practical effect” was to prohibit New

York from denying the right to vote for members of that

group, which would “be helpful in gaining nondiscriminatoi y

treatment in public services for the entire Puerto Rican

community.” Jd. Moreover, the Court emphasized that the

wisdom of Congress's legislative judgment — including the

extent of the discrimination that Congress sought to remedy

and the necessity of enacting §4(e) to eradicate that

discrimination — was not a question for the Court. As the

Court explained:

It was for Congress, as the branch that made

this judgment, to assess and weigh the various

conflicting considerations — the risk or

pervasiveness of the discrimination in

governmental services, the effectiveness of

eliminating the state restriction on the right to

vote as a means of dealing with the evil, the

adequacy or availability of alternative

remedies, and the nature and significance of

the state interests that would be affected by the

nullification of the English literacy

requirement .... It is not for us to review the

congressional resolution of these factors. /t is

enough that we be able to perceive a basis

upon which the Congress might resolve the

conflict as it did.

Id. at 653 (emphasis added).

While the cases in which the Court has applied the

McCulloch standard have all involved legislation addressing

the effects of racial discrimination, the reasons for the Court’s

adherence to the McCulloch standard apply equally to laws

addressed to the effects of discrimination by States against

women. As the Court has long recognized, like racial

minorities, women have been the victims of a pattern of

unconstitutional discrimination throughout the Nation’s

history. It is well established that “our Nation has had a long

and unfortunate history of sex discrimination.” United States

v. Virginia, 518 U.S. 515, 531 (1996) (quoting Frontiero v.

Richardson, 411 U.S. 677, 684 (1973)). Furthermore,

“(while the prejudicial attitudes toward women in this

country have not been identical to those held toward racial

minorities, the similarities between the experiences of racial

minorities and women, in some contexts, ‘overpower those

differences.’” J.E.B. v. Alabama, 511 U.S. 127, 135 (1994)

(citation omitted). And,_as in the case of racial

discrimination, the Court has applied heightened scrutiny to

any classifications based on gender because like race, gender

is a Classification that is rarely justified by any state interest.

See Frontiero, supra, 411 U.S. at 686. Accordingly, the

Court has recognized the appropriateness of prophylactic

measures to remedy the continuing effects of the Nation’s

history of discriminatory treatment of women. See Califano

v. Webster, 430 U.S. 313, 318 (1977) (per curiam) (upholding

provision of Social Security Act allowing women greater old-

age benefits as an enactment that “works directly to remedy

some part of the effect of past discrimination” against women,

“who as such have been unfairly hindered from earning as

much as men.”).

Among the forms of that discrimination has been the

restriction by the States of women’s participation in the

workforce based on stereotypical “fixed notions concerning

the roles and abilities of males and females.” Mississippi

Univ. for Women v. Hogan, 458 U.S. 718, 725 (1982) (noting

that “[h]istory provides numerous examples of legislative

attempts to exclude women from particular areas simply

because legislators believed that women were less avle than

men to perform a particular function.”) (citing cases). In

particular, the States gave legal status to the view that women

were unfit for any role beyond family caregiver. See, e.g.,

Bradwell v. Illinois, 16 Wall. 130, 141 (1872) (Bradley, J.,

concurring) (“The natural and proper timidity and delicacy

which belongs to the female sex evidently unfits it for many

of the occupations of civil life. ... The paramount destiny and

mission of woman are to fulfill the noble and benign offices

of wife and mother.”). The pervasiveness of this state-

imposed stereotype is reflected in the abundance of case law

documenting the States’ exclusion of women from working

life. See Hibbs v. Nevada Dep't of Human Resources, 273

F.3d 844, 861-64 (9th Cir. 2001) (examining numerous cases

upholding discriminatory statutes limiting permissible hours

during which women could work or barring women from

particular lines of work altogether).

These laws were predicated on the same stereotypical

rationale articulated by Justice Bradley in Bradwell, namely,

to ensure that women were not distracted from “the proper

discharge of the maternal functions” and “the maintenance of

the home.” Hibbs, 273 F.3d at 864 (citations omitted)

(collecting cases). Notwithstanding the Court’s application

over the past three decades of heightened scrutiny to

discriminatory state action based on gender, these stereotypes

continue to exist and impede women’s equal participation in

the workplace. See Michael Selmi, Family Leave and the

Gender Wage Gap, 78 N.C. L. Rev. 707, 708 (2000)

(concluding that “employers exact penalties on women .. .

because of the presumption that women will leave the

workforce when they have children.”).*

* In addition, we respectfully refer the Court to the brief of amici

curiae NOW Legal Defense and Education Fund, ef al., for a

more detailed examination of the history of the States’

discrimination against women.

C, Even If the Court Requires Legislation Remedying

the Effects of Discrimination Subject to Heightened

Scrutiny to Be Congruent and Proportional, Such

Legislation Should Be Held to Be Authorized by

§ 5 If It Meets the “Rational Means” Test

As discussed above, amici believe that McCulloch sets

forth the proper analysis for determining whether Congress's

actions to remedy the effects of discrimination subject to

heightened scrutiny were appropriate legislation under § 5.

Thus, even if the Court determines that the congruence and

proportionality rubric applies to legislation enacted to remedy

discrimination against women, amici submit that the

McCulloch “rational means” test is the proper standard for the

determin» ion of whether such legislation is congruent and

proportional. As we have shown, the circumstances

surrounding the Court’s application of a more searching

standard of review than is appropriate under the McCulloch

standard do not exist where Congress seeks to eradicate the

effects of discrimination against protected classes such as

women. Accordingly, § 5 legislation addressed to remedying

the effects of gender discrimination is congruent and

proportional if it is a rational means to accomplishing that

purpose.

D. Section 2612(a)(1)(C) of the Family and Medical

Leave Act May Be Viewed As a Rational Means of

Remedying the Effects of Discrimination Against

Women

In applying the McCulloch standard of review to

§ 2612(a)(1)(C), the Court should ask only whether the

legislation addresses individuals protected by heightened

scrutiny and, if so, whether Congress could have determined

that it was a rational approach to addressing the problem. In

this case, because there is no question as to the existence of a

pattern of unconstitutional gender discrimination, the only

issue remaining for the Court is whether § 2612(a)(1)(C) is a

“rational means” of combating the effects of the state-

enforced gender stereotype discussed above. As noted, under

this standard, “[iJt [is] for Congress . . . to assess and weigh

the various conflicting considerations — the risk or

pervasiveness of the discrimination . . ., the effectiveness of

eliminating the [state action at issue] as a means of dealing

with the evil, the adequacy of alternative remedies, and the

nature and significance of the state interests that would be

affected ....” Katzenbach v. Morgan, 384 U.S. at 653.

Section 2612(a)(1)(C) clearly satisfies this standard.

By requiring employers to provide up to 12 weeks

unpaid leave to care for family members on a gender-neutral

basis, § 2612(a)(1)(C) assures that, at least in some cases,

family leave will be taken by men. This serves both to break

down the stereotype of women as primary caregivers and to

allow spouses to allocate family caregiving responsibilities

according to their own preferences, rather than the gender

roles forced upon them by the States. Furthermore, as the

Ninth Circuit correctly determined; § 2612(a)(1)(C) is a

rational means of counteracting any tendency on the part of

employers to view women as less desirable job candidates

than men because of the state-sponsored perception that they

will require more time off to tend to their families. See

Hibbs, 273 F.3d at 867.

Petitioner’s view of the ends that Congress addressed

in the family leave provision of FMLA is unduly narrow. Pet.

Br. at 30-35. The issue is not whether States have had a

pattern of discriminatory leave policies or whether many

States have family leave policies that are at least as generous

as that provided under § 2612(a)(1)(C). As noted, the federal

leave policy can reasonably be seen as a means of eradicating

the effects and stereotypes engendered by a long history of

state-sponsored discrimination, which clearly falls within its

§ 5 powers. See City of Rome, supra, 446 U.S. at 176; South

Carolina v. Katzenbach, supra, 400 U.S. at 319-20.

Moreover, notwithstanding the existence of state leave

policies, Congress could rationally have concluded that

uniform, nationwide minimum standards are desirable to

remedy the pervasive gender stcreotypes created by the

Nation’s history of state-sponsored discrimination. See

Oregon v. Mitchell, 400 U.S. at 284.

In sum, as this Court has recognized, the existence of

a pattern of state discrimination on the basis of gender can be

presumed. Hence, even if the congruence and proportionality

test applies, legislation adopted by Congress to address the

effects of such discrimination is “congruent and proportional”

if it can be discerned that the legislation is a “rational means”

to address those effects. Here, § 2612(a)(1)(C) “may be

viewed” as a rational means of enforcing the Equal Protection

Clause, and is therefore valid legislation under § 5.

Katzenbach v. Morgan, 384 U.S. at 652.

Il. THE COURT SHOULD RECONSIDER THE

MORE RIGOROUS STANDARD OF REVIEW

THAT IT HAS RECENTLY APPLIED TO § 5

LEGISLATION TO DETERMINE

CONGRUENCE AND PROPORTIONALITY

We have shown above that the standard of review

employed to determine congruence and proportionality in

cases like Kimel and Garrett does not apply to legislation,

like the legislation before the Court, aimed at remedying the

effects of gender discrimination. We also respectfully urge

the Court, however, to reexamine the standard of review it has

recently applied in cases such as Kimel and Garrett and return

to a more deferential standard in evaluating the validity of all

legislation Congress seeks to enact under its § 5 powers.

SO ee —_- -=>_

In City of Boerne and subsequent cases, the Court has

continued to recognize that it should defer to Congress’s

judgments and that “[i]t is for Congress in the first instance to

determin{e] whether and what legislation is needed to secure

the guarantees of the Fourteenth Amendment.” Kimel, 528

U.S. at 80-81 (quoting City of Boerne, 521 U.S. at 517).

Nevertheless, in applying the “congruence and

proportionality” standard, the Court has closely scrutinized

the legislative record for evidence of a “pattern” of

unconstitutional state discrimination, insisted that attempts to

deal with such discrimination on a uniform, national basis be

supported by evidence in the record, and questioned the

quality of the evidence that is reflected in the record and the

inferences that Congress was entitled to draw from it.

Respectfully, we submit that this approach is

inconsistent with the principle of separation of powers and

unduly intrudes on Congress’s legislative function. As noted,

this Court has emphasized that

[a] legislative choice is not subject to

courtroom factfinding and may be based on

rational speculation unsupported by evidence

or empirical data. ... Only by faithful

adherence to this guiding principle is it

possible to preserve to the legislative branch

its rightful independence and its ability to

function. -

FCC v. Beach Communications, supra, 508 U.S. at 315

(citations omitted). Yet, in determining “congruence and

proportionality” in cases such as Kimel and Garrett, the Court

has required that Congress indicate the “reasons for [its]

action” in the legislative record and support those “reasons”

with evidence of the necessity of § 5 legislation. Kimel, 528

U.S. at 88. The Court thus appears to have imposed an

evidentiary standard more appropriate to an administrative

agency than a coordinate branch of the Federal Government.

See Garrett, 531 U.S. at 376 (dissenting opinion of Breyer, J.,

joined by Stevens, Souter, and Ginsburg, JJ.).

Moreover, the Court appears to have limited the

inferences that Congress may draw through the use of

common sense from the information it has received from

multiple sources. For example, in Garrett, this Court held

that substantial evidence of society-wide stereotypes

concerning the disabled, and even discrimination by

government officials of municipalities, were not a sufficient

basis for Congress to infer that state officials were as likely to

hold the same stereotypes and prejudices that affected or were

likely to affect their treatment of the disabled. See Garrett,

531 U.S. at 377-78 (opinion of Breyer, J., dissenting, joined

by Stevens, Souter, and Ginsburg, JJ.). And the requirement

of a record showing a pattern of discriminatory state action

also implies that Congress’s power “to enforce” the

Fourteenth Amendment limits it to legislation remedying past

conduct that can be reflected in a record and precludes it from

legislating prophylactically to protect against incipient or

potential conduct that threatens to undermine the guarantees

of the Fourteenth Amendment. See John T. Noonan, Jr.,

NARROWING THE NATION’S POWER: THE SUPREME COURT

SIDES WITH THE STATES 93 (2002).

With all respect, we believe that the Court’s standard

of review in these cases not only violates the separation of

powers by imposing judicial requirements upon Congress’s

legislative procedure, but also reflects an unworkable view of

the legislative process and, in effect, calls upon Congress to

dramatically alter the way in which it legislates.

First, the Court’s apparent requirement that Congress

articulate a single, coherent policy rationale and support that

—

rationale with evidence in the legislative record does not

accord with the reality of the legislative process. Members of

Congress represent constituencies with diverse, often

conflicting, interests. Hence, legislation is rarely, if ever,

reached through consensus, but rather, through competition

and majority vote. See Philip P. Frickey & Steven S. Smith,

Essay, Judicial Review, The Congressional Process, and the

Federalism Cases: An Interdisciplinary Critique, 111 Yale

L.J. 1707, 1741-45 (2002). Moreover, legislation is generally

the Product of a competitive process of bargaining and

coalition-building as opposed to rational deliberation.

Accordingly, in many, if not most, cases, no specific,

identifiable rationale exists. See id. at 1744-45.

. In addition, the Court’s requirement of an evidentiary

predicate in the legislative record mistakenly assumes that all

the information upon which Congress draws in enacting

legislation is incorporated in that record. Congress is

informed through numerous sources that are not reflected in

the legislative record. For example, Members of Congress

bring to the legislature the views and experiences of the

citizens whom they represent. Thus, unlike a trier of fact in a

court or an administrative law judge, Congress is not a

“tabula rosa until it conducts on-the-record proceedings,” but

rather, “grounds its claim to legitimacy on knowledge of and

accountability to the citizens it represents.” A. Christopher

Bryant & Timothy J. Simeone, Remanding to Congress: The

Supreme Court's New “On the Record” Constitutional

Review of Federal Statutes, 86 Cornell L. Rev. 328, 385-86

(2001). In addition, Congress acquires information from,

inter alia, communications with interest groups, information

Support services such as the General Accounting Office and

the Congressional Research Service of the Library of

Congress, written materials from party leadership offices,

members’ caucuses, legislators’ personal staffs, and

communications with the executive branch. See id. at 384-87:

Frickey & Smith, supra, at 1734-36.

Thus, among the branches of the Federal Government,

Congress is uniquely capable of amassing information from a

wide range of sources, both during and outside of its formal

proceedings. Reliance on the legislative record alone is

therefore an incomplete measurement of the basis for

Congress’s judgments. More significantly, however, it

appears that if Congress is to satisfy the congruence and

proportionality test as applied in cases like Kimel and Garrett,

it must painstakingly catalogue the information acquired from

such extra-record sources in the legislative record. For the

reasons discussed above, this would mark a dramatic

alteration of Congress’s legislative procedure.

Furthermore, by requiring Congress to adhere to

judicially imposed procedural requirements when it legislates,

the Court’s application of the congruence and proportionality

test conflicts with at least the spirit of a number of

constitutional provisions that limit judicial intrusion into the

legislative sphere. These include the Rules and Journal

Clauses of Article I, which provide respectively that “[eJach

House may determine the Rules of its Proceedings” and “shall

keep a Journal of its Proceedings, and from time to time

publish the same, excepting such Parts as may in their

Judgment require secrecy.” U.S. Const. art. I, § 5, cl. 2, 3.

The Court has interpreted both of these provisions as giving

Congress wide discretion to determine how to report and

record its consideration of legislation. See, e.g., United States

v. Ballin, 144 U.S. 1 (1892); Field v. Clark, 143 U.S. 649

(1892).

The more demanding standard of review applied in

cases such as Kimel and Garrett also appears to conflict with

the Speech or Debate Clause, which provides that “for any

Speech or Debate in either House, [Senators and

Representatives] shall not be questioned in any other Place.”

U.S. Const. art. I, § 6, cl. 1. The Court has determined that

one of the Speech or Debate Clause’s chief purposes is “to

insure that the legislative function the Constitution allocates

to Congress may be performed independently” and

“reinforc[e] the separation of powers so deliberately

established by the Founders.” Eastland v. United States

Servicemen's Fund, 421 U.S. 491, 502 (1975). See also

Gravel v. United States, 408 U.S. 606, 628-29 (1972)

(holding that Speech or Debate Clause prohibited court from

inquiring into conduct of, or preparation for, congressional

proceeding); Bryant & Simeone, supra, at 376-83.

We understand the Court’s approach, first articulated

in City of Boerne and applied in cases like Kimel and Garrett,

to reflect two concerns: first, that in the absence of a

judicially recognized history of state discrimination, Congress

actually may be seeking to expand the substantive scope of

the Fourteenth Amendment or is adopting a remedy that is

disproportionate to the number of instances of

unconstitutional state conduct; and second, that in such

circumstances, there is a need to protect the sovereignty of the

States against unwarranted intrusions by Congress in the

guise of enforcing the Fourteenth Amendment. We

respectfully submit that neither concern justifies the intrusion

into the legislative process that application of the standard of

review in cases like Kimel and Garrett has entailed.

In the absence of conduct involving a judicially

recognized history of unconstitutional state action, this Court

has limited itself to rational basis review in evaluating

whether state conduct entails arbitrary and purposeful

discrimination, in recognition of the Court’s own-fact-finding

limitations and the deference due to democratically elected

legislatures. But it is precisely because Congress, as a

democratically elected legislature, is not so limited that it is

inappropriate to impose a rigorous standard of judicial review

on Congress’s determination of the existence or a threat of

unconstitutional state conduct, even if not previously

recognized by the Court. See Garrett, 531 U.S. at 382-85

(dissenting opinion of Breyer, J., joined by Stevens, Souter,

and Ginsberg, JJ.); Robert C. Post & Reva B. Siegel, Equal

Protection by Law: Federal Antidiscrimination Legislation

after Morrison and Kimel, 110 Yale L.J. 441, 467-73 (2000).

As discussed above, in making legislative judgments,

Congress relies on many sources of information and intuition

that would not support a judicial or administrative

determination, but which are characteristic of a democratic

legislative process. The Fourteenth Amendment expressly

assigns to Congress the task of enforcing its guarantees and,

under the long tradition established by McCulloch, its

judgments that there exists arbitrary and purposeful state

discrimination requiring legislation, and what legislation is

“appropriate” to enforce the Fourteenth Amendment's

guarantees against such discrimination and its effects, deserve

deference and respect.

We also submit that concerns that Congress may be

unjustifiably intruding on state sovereignty do not support a

more rigorous standard of review of Congress’s legislative

recognized, the Civil War Amendments were specifically

designed as an expansion of federal power and an intrusion on

state sovereignty. See Fitzpatrick v. Bitzer, 427 U.S. 445,

455-56 (1976) (noting that the Amendments effected “the

expansion of Congress’s powers with the corresponding

diminution of state sovereignty”) (discussing Ex parte

Virginia, 100 U.S. at 345-46). Moreover, the States are not

on isclated minesity ‘ring heigh { judicial

against a tyrannical majority. To the contrary, the political

process and the structure of the Federal Government — in

particular, the States’ equal representation in the Senate —

were the principal means intended by the Framers to prevent

inappropriate intrusions by the federal legislature on the

States’ sovereignty. See Kimel, 528 U.S. at 93-94 (dissenting

opinion of Stevens, J., joined by Souter, Ginsburg, and

Breyer, JJ.); Garcia v. San Antonio Metro. Transp. Auth., 469

U.S. 528, 550-51 (1985).

In sum, the standard recently applied by the Court to

determine congruence and proportionality substitutes the

Court’s views of how Congress should conduct its lawmaking

processes in carrying out its duty to “enforce, by appropriate

legislation, the provisions of [the Fourteenth Amendment],”

and ultimately substitutes the Court’s judgment for that

traditionally left to Congress alone as to the “closeness of the

relationship between the means to be adopted, and the end to

be attained.” Burroughs v. United States, supra, 290 U.S. at

547-48. This is a departure from the Court’s historic

recognition of its own institutional limitations and the

deference due to the democratically elected legislative branch,

except in cases where the Court’s intervention is needed to

protect the rights of individuals guaranteed by the

Constitution and those “discrete and insular minorities” who

do not have access to the democratic process to protect their

rights against a dominant majority. United States v. Carolene

Prods. Co., 304 U.S. 144, 152-53 n.4 (1938). Accordingly,

for the reasons discussed above, amici curiae respectfully

urge the Court to reconsider the rigorous standard of review it

has recently applied to determine congruence and

proportionality, even in cases where the Court has not

previously recognized a history of purposeful unequal

treatment.

CONCLUSION

For the foregoing reasons, amici curiae The Lawyers’

Committee for Civil Rights under Law, The National Asian

Pacific American Legal Consortium, and The National

Association for the Advancement of Colored People

respectfully urge that the Court affirm the decision below.

THOMAS J. HENDERSON IDNE

MICHAEL FOREMAN ounsel af Record

THE LAWYERS’ COMMITTEE JOHN WR. MURRAY

For CiviL RIGHTS UNDER LA PATI E. RONAN

1401 New York Avenue, NW = Counsel on the Brief

Suite 400 PAUL, WEISS, RIFKIND,

Washington, DC 20005 WHARTON & GARRISON

(202) 662-8600 1285 Avenue of the

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