3lu. T.M. May 27, 1986

Transcription

1 ~tqtrtutt Qf&nttt of tlft ~b.i>taite lllaelfinghtn, ~. a;. 21l.S'l-~ CHAM!!E:RS OF".JUSTICE THURGOOD MARSHALL j May 27, 1986 / / Re: No ~ Local 28 of the Sheet Metal Workers' Int~rnational Association and Local 28 Joint Apprenticeship Committee v. Equal Employment Opportunity Commission, et al. Dear Bill: Please join me. Sincerely, 3lu. T.M. Justice Brennan cc: The Conference

2 .tlupr~nu QJ.rmi.rf tift ~ita.l'bdt :Jlulfiughtn. ~. OJ. 2ll.?.ll~ CI-I.. M!5ERS OP' JUSTICE JOHN PAUL STEVENS May 27, 1986., Re: Local 28 of the Sheet Metal Workers' International etc. v. Equal Employment Opportun1ty Comm'n Dear Bill: Please join me. Respectfully, Jve Justice Brennan Copies to the Conference

3 .tn;rrtntt (!fourt # t4t 'JuUtb.ttatt.e' Jlulthtgton, ~.(If. 211c?~~ CHAMBERS Of' JUSTICE SANDRA DAY O'CONNOR May 27, 1986 No Local 28 of the Sheet Metal Workers' International Assoc. v. EEOC Dear Bill, I will await further writing in this case. Sincerely, Justice Brennan Copies to the Conference

4 May 30, Local 28 v. EEOC Dear Bill: 1 have now had an opportunity to read your opinion with some care, and appreciate your invtting me to make suggestions. In view of the length of the opinion, there are views expressed throughout the draft that would give me trouble. Going back to Bakke, although you and 1 have had a good deal of common ground in affirmative action cases, we also have differed primarily as to th~ applicable standard - as recently evidenced in Wygant and previously in Bakke and.fullilove. The area is a troublesome one for all of us, and I fully respect your views. 1 also admire the diligence and thoroughness manifested by you and your law clerks in this 57-page draft. As indicated in a separate memo to the Conference, I plan to write a brief opi.nion concurring in the judgment. Sincerely, Justice Brennan lfp/ss

5 lfp/ss 05/30/86 L028 SALLY-POW MEMORANDUM TO: Mike DATE: May 30, 1986 FROM: Lewis F. Powell, Jr Local 28 Having read WJB's opinion (only 57 pages), it is clear that we should write an opinion concurring in the judgment, and possibly in the parts of his opinion that address the contempt question. We could limit a concurring opinion substantially to what I circulated to the Conference after the case was argued. It may be desirable, however, to address some of the statements made in the Court opinion. In this memorandum I mention more or less at random, some portions of the opinion that particularly trouble me. 1. Part IV (pp ) addresses the meaning of 706 (g), and is a critical "holding" section. I cannot agree with the holding or with a number of the statements in this part. The holding is as follows: "Specifically, we hold that such relief may be appropriate where an employer or a labor union has engaged in persistent or e~regious discrimination, or where necessary to d1ssipate the lingering effects of pervasive discrimination." p. 20.

6 2. This holding contains none of the qualifications that a majority of the Court accepted in Wygant. The fact that this is a Title VII, rather than an equal protection case, does not make this language acceptable. There is no reference in this part of the opinion to the requirement of a finding of prior discrimination, though there were qbundantly adequate findings to this effect by the District Court in this case. Nor is there any reference in Part IV to the requirement of a narrowly tailored remedy. On p. 24 the opinion, as I read it, says that even a "reputation" of discrimination could justify race conscious remedies! 2. Section IV-C {pp ) is devoted to the legislative history. This reflects admirable thoroughness by Justice Brennan's clerk or clerks, and I have no reason to doubt the accuracy of the factual statements. But since we have not studied the legislative history, I will not join Subpart C of Part IV. I do agree with WJB that the Solicitor General's interpretation of Title VII with respect to "actual victims" is not correct.

7 '..;;) 3. Subpart E of Part IV (pp ) on its face seems quite helpful. Possibly, if this were standing alone it would be close to my views. For example, see the following sentence: "We note only that a court should consider whether affirmative action is necessary to remedy past discrimination in a particular case before imposing such measures, and that the Court should also take care to tailor its order to fit the nature of the violation it seeks to correct." {p. 50). My difficult is that other portions of Part IV contain numerous statements that can be read as inconsistent with this sentence. See, e.g., the "holding" on p. 20. On p. 53, the opinion does state that petitioners "concede that the DC's orders did not require any member of the union to be laid off, and did not discriminate against existing union members." This is an important point for me. * * * In sum, although there is much in WJB, long opinion with which I agree, particularly in Subpart E, the opinion is simply too long and there are too many statements that in future cases can and will be read out

8 4. of context for me to join the Court opinion. Nor do I believe it is feasible to suggest changes that would make the opinion acceptable. The opinion is replete with statements that are ambiguous, unnecessary, and at least on their face contrary to my views. I therefore would appreciate your preparing a draft of an opinion concurring in the judgment. L.F.P., Jr. ss

9 Mav 30, Local 28 v. EEOC Dear Bill: 1 will concur in your judgment, but will write separately as there are still differences between our respective views as to affirmative action plans. Sincerely, Justice Brennan lfp/ss cc: The Conference

10 ~tmt a}onrt (t{ tltt :Jlnittb ;Jtatte._agltitt.ghm. ~. <!f. 2D,?J!~ CHAMBERS OF JUSTICE HARRY A. BLACKMUN May 30, 1986 Re: No , Local 28 of the Sheet Metal Workers' Ass'n & Local 28 Joint Apprenticeship Comm. v. EEOC Dear Bill: Please join me. Sine/;// Justice Brennan cc: The Conference

11 lfp/ss 06/18/86 LOCM SALLY-POW MEMORANDUM TO: Bob and Mike DATE: June 18, 1986 FROM: Lewis F. Powell, Jr Local 28 v. EEOC Bob's draft of this date of a concurring opinion is quite good, and I commend Bob on his application of Fullilove to this vastly complicated case. Although my editing may appear extensive, it is largely stylistic. In some instances, I have made changes to assure consistency with my prior positions. I understand from a brief talk with Mike this morning that you both may want to relocate some of the language to make clear the distinction between Title VII and equal protection analysis. With respect to whether non-minorities are burdened or disadvantaged, my recollection - without checking is that they may be disadvantaged ~o the extent that the fund coming from the union funds benefits only non-minorities. If this is so, we should add a footnote. * * *

12 2. I am anxious to circulate this opinion {at least in typewritten form) no later than Friday. I therefore would appreciate your reviewing my edit promptly, and getting a comparatively clean copy to the printer for a Chambers draft. When that is available, the other two clerks can take a look. To avoid being backed up behind the cases we will bring down next week, I may circulate a typewritten draft no later than Friday - with your help. L.F.P., Jr. ss

13 - lfp/ss 06/19/86 CAL SALLY-POW MEMORANDUM TO: Bob and Mike DATE: June 19, 1986 FROM: Lewis F. Powell, Jr Local 28 v. EEOC In thinking about this case, I would be interested in your answers to the following hypotheticals: 1. A public employer voluntarily sets an inflexible quota for the purpose of increasing minority employees to some specified percentage, but without any layoffs of non-minorities. 2. The same question with respect to a private employer. 3. The same question with respect to a public employer in a city (and there are now many of them in the United States) in which blacks - or blacks and Chicanos - outnumber whites and control the city government. In such a city, the government rarely employs a non-minority person except in labor force positions. A suit is brought by non-minorities who prove intentional discrimination. Would Cv1.; the same principles apply ~ if the government were controlled by whites? In other words, does the Equal

14 2. Protection Clause operate both ways with respect to affirmative action? * * * I am not suggesting that we answer these questions in either of the pending cases. I would like the benefit of your thinking for the future. Also, I want to leave open these questions to the extent possible in my opinion in the present case. ss L.F.P., Jr.

15 To: The Chief Justice Justice Brennan Justice Marshall Justice Blackmun Justice Powell Justice Rehnquist Justice Stevens Justice O'Connor From: Justice White Circulated: JUN 2_3_ ::..==----- Recirculated: 2-...>}st DRAFT ~ SUPREME COURT N~:= UNITED STATES _,1,,() LOCAL 28 OF THE SHEET METAL WORKERS' INTER- 1 ~ fi;v-" NATIONAL ASSOCIATION AND LOCAL 28 JOINT. ~ APPRENTICESHIP COMMITTEE, PETITIONERS n f,/1/"~ ({.. I ~ v. EQUAL EMPLOYMENT OPPORTUNITY VV (:; COMMISSION ET AL. {J... ~~./ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF (Jf-'f{ ~.. A ~y APPEALS FOR THE SECOND CIRCUIT ~ ~JJ.A ' [June-, 1986] r;yp &(-vlf- JUSTICE WHITE, dissenting. As the Court observes, the general policy under Title VII is to limit relief for racial discrimination in employment practices to actual victims of the discrimination. But I agree that 706(g) does not bar relief for nonvictims in all circumstances. Hence, I generally agree with Parts I through IV-D of the Court's opinion. It may also be that this is one of those unusual cases where nonvictims of discrimination were entitled to a measure of the relief ordered by the District Court and affirmed by the Court of Appeals. But Judge Winter, in dissent below, was correct in concluding that critical parts of the remedy ordered in this case were excessive under 706(g), absent findings that those benefiting from the relief had been victims of discriminatory practices by the union. As Judge Winter explained and contrary to the Court's views, the cumulative effect of the revised affirmative action plan and the contempt judgments against the union established not just a minority membership goal but also a strict racial quota that the union was required to attain. We have not heretofore approved this kind of racially discriminatory hiring practice, and I would not do so now. Beyond this, I am convinced, as Judge Winter was, that hold-

16 DISSENT ~~1 2 SHEET METAL WORKERS v. EEOC ~4 ing the union in contempt for failing to attai he membership quota during a time of economic doldrums m the construction ~ 1, indu$.cy and a d~ clinrng demand for the union s:kllls involved ~' -. I' in this case was for all practical purposes equivalent to a judi- f ~ cial insistenc~ the union COffii?lY even if it required the I 1. tj A ~ ~uh1c"em e..nt g.( ~nbnoriti ~~ by memoers of the ~- plailltiff class. The remedy is inequitable in my view, and C/- ~ ~ for this reason I dissent from the judgment affirming the U-.?; ~ ~ Court of Appeals. 1 ~j J~ ~~ec_ ~-~ ~~(_~ -.Vt.._~ ~ A~~ ~ f&-y~- ~~ ~ ~J ~a.._,~.ft- 1-t:>~ -ef0j ~

17 rbs 06/23/86 To: Mr. Justice Powell June 23, 1986 From: Bob No Local 28 Justice White's dissent is more noticeable for its failure to address Stotts, and his announced agreement with much of the majority's analysis, than for anything else. I do not think that there is any need to respond to Justice White's dissent which is devoid of any analysis whatsoever. I have accurately quoted the oral argument transcript to the effect that petitioners conceded that the decree would have no effect on existing workers. In addition, on the one occasion when the union carne to the court to complain that economic conditions were rnaking it difficult to achieve the goal, the District Court extended the deadline. I think that both of these points are clearly made

18 page 2. both in your concurring opinion and in Justice Brennan's opinion. Justice White's addition amounts to nothing more than his stated agreement with the dissenting judge below, who characterized the District Court's holding as a "faintly camouflaged holding that journeymen should have been replaced by minority apprentices on a strictly racial basis." I am aware of nothing in the record to support this characterization, and Justice White cites nothing. Nothing need be added in my view, Mike agrees with me on this. At the very least, I would await more writing before deciding whether to add anything to your concurring opinion. My "grapevine" has it that Justice Brennan will not respond at this time either.

19 .tttpum:t <!fouri of tltt,-mttb.ttatte Jlag!p:nghtn. ~. <!f. 21lgt'!-~ CHAM!IERS 01'" THE CHIEF JUSTICE June 24, 1986 R E : No Lo c a v. EF. 0 C Dear Bill: I join your dissenting opinion. Justice Rehnquist Copies to the Conference

20 Local 28 v. EEOC (Mike) WJB for the Court 3/10/86 1st draft 5/25/86 2nd draft 6/4/86 3rd draft 6/30/86 Joined by JPS 5/27/86 TM 5/27/86 HAB 5/20/86 LFP concurring in part and concurring in the judgment 1st draft 6/20/86 2nd draft 6/25/86 3rd draft 6/30/86 BRW dissenting 1st draft 6/23/86 WHR dissenting 1st draft 6/24/86 2nd draft 6/25/86 Joined by CJ 6/24/86 soc concurring in part and dissenting in part 1st draft 6/26/86 soc awaiting further writing 5/27/86 LFP will concur in the judgment 5/30/86,, '