Statement of the Honorable John Conyers, Jr.
for the Hearing on "Civil Rights Under Fire: Recent Supreme Court Decisions"
Before the Subcommittee on the Constitution, Civil Rights, and Civil Liberties
Thursday, October 8, 2009, at 10:00 a.m.
2141 Rayburn House Office Building
In recent years, I have become deeply concerned about the direction of the Supreme Court,
particularly with respect to civil rights laws passed by Congress. Too often, the Court has
interpreted civil rights laws much more narrowly than Congress intended. The result has been to
harm the people that the laws were intended to protect and require Congress to consider new
legislation to try to repair the damage.
Let me give three examples:
First, in Ledbetter v. Goodyear Tire and Rubber in 2007, the Court's decision harmed victims of
pay discrimination by ruling that a discriminatory salary decision can only be challenged under
federal law within 180 days of the initial decision. This is despite the fact that such decisions
have continuing effects and are typically not discovered by victims until much later. The dissent
rightly criticized the majority for adopting a "cramped interpretation" that was "incompatible
with the statute's broad remedial purpose." Congress effectively overruled this ruling in the
Lilly Ledbetter Fair Pay Act of 2009.
Second, earlier this year, the Court made it harder for workers to prevail against age
discrimination in Gross v. FBL Financial Services. Previously, if an employee could prove that
age was a factor in a layoff or demotion, the employer had to show that it had acted for a valid
reason to prevail in a discrimination case. As a result of the Gross ruling, however, workers now
face the full burden of showing that age was the deciding factor. As the dissenters pointed out,
this clearly contradicts Congress' intent. Just yesterday, I joined many of my colleagues in
cosponsoring the Protecting Workers Against Discrimination Act to overrule Gross and restore
the rights of older workers.
Third, the Court issued a harmful decision in Alexander v. Sandoval in 2001. In that case, the
Court ruled that victims of discrimination in federally-funded programs cannot challenge such
discrimination unless they can prove intent, despite the fact that federal regulations
implementing anti-bias law prohibit actions that also have an unjustified discriminatory effect.
This reversed decades of precedent and has already harmed discrimination victims around the
country. I have joined many of my colleague in introducing legislation to reverse this decision,
most recently in the Civil Rights Act of 2008, although such legislation has not yet passed the
Unfortunately, there have been many more such decisions in recent years harming civil rights,
and I look forward to hearing about them from the experts who will testify before us today.
Under our system of checks and balances, Congress is not defenseless when the Court makes
these kinds of decisions. It can correct many Court rulings that harm civil rights, as it has
already concerning the Ledbetter case and is seeking to do with respect to the Gross and
Sandoval cases. I look forward to hearing our panel's suggestions about what they think we in
Congress and the federal government, and the American people, should do about this problem.
As many of you know, I have dedicated my life to the struggle for civil rights and civil liberties,
and I am gravely concerned about the implications for future generations if the Supreme Court
continues on its present course. If we do not remain vigilant in our role as a watchdog over the
Judiciary, and active in protecting against reversals of civil rights precedents and statutes, then
we will risk losing rights and freedoms won over the past generations.
This hearing is about recent rulings issued by the Court that interpret congressional statutes so
narrowly that it creates barriers to the courts and weakens the voting rights and employment
rights of Americans. It is about the Court's willingness to substitute its judgment for that of
Congress in statutory interpretation.
There were questions raised by Justice Kennedy at the Northwest Austin Municipal Utility
District Number One v. Holder oral argument challenging whether Section 5 was still needed in
light of Barack Obama's successful election to the presidency. I would like to hear the views of
our witnesses on the relevancy of Section 5 now, in light of President Obama's election.
The Court recently issued a ruling on the application of Title VII to age discrimination in Gross
v. FBL Financial Services, Inc. 2009. It's interpretation has made it more difficult for people to
bring a successful age discrimination case. I would like to hear from the witnesses about the
action Congress should take to address this issue.
In 2003 the Supreme Court upheld the use of affirmative action in higher education. At that time,
Justice O'Connor said, "We expect that 25 years from now, the use of racial preferences will no
longer be necessary to further the interest approved today." The 25 year time period was raised
again in 2007, by Justice Roberts and Alito in Parents Involved in Community Schools v. Seattle
School District. Both Justices expressed skepticism about the continuing need to consider race. I
would like to know the views of our witnesses on the continuing need to consider race in
education and employment. Of the recent Supreme Court rulings, I would like to know which
area of law has been subjected to the most setbacks.
In 1988, the Office of Legal Counsel in the Department of Justice authored an extensive report
on potential developments in key areas of constitutional law. The report, "The Constitution in
the Year 2000: Choices Ahead in Constitutional Interpretation," advocated strict construction of
the constitution and a more limited role for Congress in passing remedial legislation to address
discrimination. I would like to hear the views of our witnesses on whether the Court is moving
in that direction.