# Amicus Curiae Brief — Smigelski v. Office of Disciplinary Counsel

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0551%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2011
- **Citation:** 565 U.S. 818

## Text

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
il

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

vi

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

2

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

3

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

6

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.

10

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

12

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

13

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

14

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

15

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

16

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.

17

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

18

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

19

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.

20

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

21

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

22

—

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

23

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

24

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

25

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

judgments under §5. To begin with, as the Court has ©

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

26

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.

27

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.

if

es

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
Americas

New York, New York

10019-6064

(212) 373-3000
VINCENT A. ENG DENNIS COURTLAND HAYES
NATIONAL ASIAN PACIFIC ANGELA CICCOLO

AMERICAN LEGAL CONSORTIUM NAACP NATIONAL
1140 Connecticut Avenue, NW HEADQUARTERS

Washington, DC 20036 4805 Mt. Hope Drive
Washington, DC 20036 Baltimore, Maryland
(202) 296-2300 21215-3297

(410) 580-5777

28

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0551%3A15. Public record. Not legal advice.