Subject:  GREGORY v. ASHCROFT, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



GREGORY et al., JUDGES v. ASHCROFT, GOVERNOR OF MISSOURI

certiorari to the united states court of appeals for the eighth circuit

No. 90-50.  Argued March 18, 1991 -- Decided June 20, 1991

Article V, MDRV 26 of the Missouri Constitution provides a mandatory
retirement age of 70 for most state judges.  Petitioners, judges subject to
MDRV 26, were appointed by the Governor and subsequently were retained in
office by means of retention elections in which they ran unopposed, subject
only to a "yes or no" vote.  Along with other state judges, they filed suit
against respondent Governor, alleging that MDRV 26 violated the federal Age
Discrimination in Employment Act of 1967 (ADEA) and the Equal Protection
Clause of the Fourteenth Amendment.  The District Court granted the
Governor's motion to dismiss, ruling that there was no ADEA violation
because Missouri's appointed judges are not covered "employees" within the
Act's terms, and that there was no equal protection violation because there
is a rational basis for the distinction between judges and other state
officials to whom no mandatory retirement age applies.  The Court of
Appeals affirmed.

Held:

    1. Missouri's mandatory retirement requirement for judges does not
violate the ADEA.  Pp. 2-16.

    (a) The authority of a State's people to determine the qualifications
of their most important government officials lies "at the heart of
representative government," and is reserved under the Tenth Amendment and
guaranteed by the Guarantee Clause of Article IV, MDRV 4.  See, e. g.,
Sugarman v. Dougall, 413 U. S. 634, 648.  Because congressional
interference with the Missouri people's decision to establish a
qualification for their judges would upset the usual constitutional balance
of federal and state powers, Congress must make its intention to do so
"unmistakably clear in the language of the statute."  See, e. g., Will v.
Michigan Dept. of State Police, 491 U. S. 58, 65.  Moreover, where Congress
acts pursuant to its Commerce Clause power -- as it did in extending the
ADEA to the States, see EEOC v. Wyoming, 460 U. S. 226 -- the authority of
a State's people to determine their government officials' qualifications
may be inviolate.  Application of the Will plain statement rule to
determine whether Congress intended the ADEA to apply to state judges may
help the Court to avoid a potential constitutional problem.  Pp. 3-11.

    (b) Appointed state judges are not covered by the ADEA.  When it
extended the Act's substantive provisions to include the States as
employers, Congress redefined "employee" to exclude all elected and most
high-ranking state officials, including "appointee[s] on the policymaking
level."  It is at least ambiguous whether a state judge is such an
appointee.  Regardless of whether the judge might be considered to make
policy in the same sense as executive officials and legislators, the judge
certainly is in a position requiring the exercise of discretion concerning
issues of public importance, and therefore might be said to be "on the
policymaking level."  Thus, it cannot be concluded that the ADEA "makes
unmistakably clear," Will, supra, at 65, that appointed state judges are
covered.  Pp. 11-14.

    (c) Even if Congress acted pursuant to its enforcement powers under
MDRV 5 of the Fourteenth Amendment, in addition to its Commerce Clause
powers, when it extended the ADEA to state employment, the ambiguity in the
Act's "employee" definition precludes this Court from attributing to
Congress an intent to cover appointed state judges.  Although, in EEOC v.
Wyoming, supra, at 243, and n. 18, the Court noted that the federalism
principles constraining Congress' exercise of its Commerce Clause powers
are attenuated when it acts pursuant to its MDRV 5 powers, the Court's
political-function cases demonstrate that the Fourteenth Amendment does not
override all such principles, see, e. g., Sugarman, supra, at 648.  Of
particular relevance here is Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1, 16, in which the Court established that it will not
attribute to Congress an unstated intent to intrude on traditional state
authority in the exercise of its MDRV 5 powers.  That rule looks much like
the plain statement rule applied supra, and pertains here in the face of
the statutory ambiguity.  Pp. 14-16.

    2. Missouri's mandatory retirement provision does not violate the Equal
Protection Clause.  Pp. 16-20.

    (a) Petitioners correctly assert their challenge at the rational basis
level, since age is not a suspect classification under the Equal Protection
Clause, and since they do not claim that they have a fundamental interest
in serving as judges.  See, e. g., Vance v. Bradley, 440 U. S. 93, 97.  In
such circumstances, this Court will not overturn a state constitutional
provision unless varying treatment of different groups is so unrelated to
the achievement of any combination of legitimate purposes that it can only
be concluded that the people's actions in approving it were irrational.
Ibid.  P. 17.

    (b) The Missouri people rationally could conclude that the threat of
deterioration at age 70 is sufficiently great, and the alternatives for
removal from office sufficiently inadequate, that they will require all
judges to step aside at that age.  Because it is an unfortunate fact of
life that physical and mental capacity sometimes diminish with age, the
people may wish to replace some older judges in order to satisfy the
legitimate, indeed compelling, public interest in maintaining a judiciary
fully capable of performing judges' demanding tasks.  Although most judges
probably do not suffer significant deterioration at age 70, the people
could reasonably conceive the basis for the classification to be true.  See
Bradley, supra, at 111.  Voluntary retirement will not always be sufficient
to serve acceptably the goal of a fully functioning judiciary, nor may
impeachment, with its public humiliation and elaborate procedural
machinery.  The election process may also be inadequate, since most voters
never observe judges in action nor read their opinions; since state judges
serve longer terms than other officials, making them -- deliberately --
less dependent on the people's will; and since infrequent retention
elections may not serve as an adequate check on judges whose performance is
deficient.  That other state officials are not subject to mandatory
retirement is rationally explained by the facts that their performance is
subject to greater public scrutiny, that they are subject to more standard
elections, that deterioration in their performance is more readily
discernible, and that they are more easily removed than judges.  Pp.
18-20.

898 F. 2d 598, affirmed.

O'Connor, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and Scalia, Kennedy, and Souter, JJ., joined, and in Parts I and III of
which White and Stevens, JJ., joined.  White, J., filed an opinion
concurring in part, dissenting in part, and concurring in the judgment, in
which Stevens, J., joined.  Blackmun, J., filed a dissenting opinion, in
which Marshall, J., joined.
------------------------------------------------------------------------------




Subject: 90-50 -- OPINION, GREGORY v. ASHCROFT

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-50



ELLIS GREGORY, Jr. and ANTHONY P. NUGENT, Jr., JUDGES, PETITIONERS v. JOHN
D. ASHCROFT, GOVERNOR OF MISSOURI

on writ of certiorari to the united states court of appeals for the eighth
circuit

[June 20, 1991]



    Justice O'Connor delivered the opinion of the Court.
    Article V, MDRV 26 of the Missouri Constitution provides that "[a]ll
judges other than municipal judges shall retire at the age of seventy
years."  We consider whether this mandatory retirement provision violates
the federal Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat.
602, as amended, 29 U. S. C. 15 621-634, and whether it comports with the
federal constitutional prescription of equal protection of the laws.

I
    Petitioners are Missouri state judges.  Judge Ellis Gregory, Jr., is an
associate circuit judge for the Twenty-First Judicial Circuit.  Judge
Anthony P. Nugent, Jr., is a judge of the Missouri Court of Appeals,
Western District.  Both are subject to the MDRV 26 mandatory retirement
provision.  Petitioners were appointed to office by the Governor of
Missouri, pursuant to the Missouri Non-Partisan Court Plan, Mo. Const.,
Art. V, 15 25(a)-25(q).  Each has, since his appointment, been retained in
office by means of a retention election in which the judge ran unopposed,
subject only to a "yes or no" vote.  See Mo. Const., Art. V, MDRV
25(c)(1).
    Petitioners and two other state judges filed suit against John D.
Ashcroft, the Governor of Missouri, in United States District Court for the
Eastern District of Missouri, challenging the validity of the mandatory
retirement provision.  The judges alleged that the provision violated both
the ADEA and the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.  The Governor filed a motion to dismiss.
    The District Court granted the motion, holding that Missouri's
appointed judges are not protected by the ADEA because they are "appointees
. . . `on a policymaking level' " and therefore are excluded from the Act's
definition of "employee."  App. to Pet. for Cert. 22.  The court held also
that the mandatory retirement provision does not violate the Equal
Protection Clause because there is a rational basis for the distinction
between judges and other state officials to whom no mandatory retirement
age applies.  Id., at 23.
    The United States Court of Appeals for the Eighth Circuit affirmed the
dismissal.  898 F. 2d 598 (1990).  That court also held that appointed
judges are " `appointee[s] on the policymaking level,' " and are therefore
not covered under the ADEA.  Id., at 604.  The Court of Appeals held as
well that Missouri had a rational basis for distinguishing judges who had
reached the age of 70 from those who had not.  Id., at 606.
    We granted certiorari on both the ADEA and equal protection questions,
498 U. S. --- (1990), and now affirm.

II
    The ADEA makes it unlawful for an "employer" "to discharge any
individual" who is at least 40 years old "because of such individual's
age."  29 U. S. C. 15 623(a), 631(a).  The term "employer" is defined to
include "a State or political subdivision of a State."  29 U. S. C. MDRV
630(b)(2).  Petitioners work for the State of Missouri.  They contend that
the Missouri mandatory retirement requirement for judges violates the
ADEA.

A
    As every schoolchild learns, our Constitution establishes a system of
dual sovereignty between the States and the Federal Government.  This Court
also has recognized this fundamental principle.  In Tafflin v. Levitt, 493
U. S. 455, 458 (1990), "[w]e beg[a]n with the axiom that, under our federal
system, the States possess sovereignty concurrent with that of the Federal
Government, subject only to limitations imposed by the Supremacy Clause."
Over a hundred years ago, the Court described the constitutional scheme of
dual sovereigns:


" `[T]he people of each State compose a State, having its own government,
and endowed with all the functions essential to separate and independent
existence,' . . . `[W]ithout the States in union, there could be no such
political body as the United States.'  Not only, therefore, can there be no
loss of separate and independent autonomy to the States, through their
union under the Constitution, but it may be not unreasonably said that the
preservation of the States, and the maintenance of their governments, are
as much within the design and care of the Constitution as the preservation
of the Union and the maintenance of the National government.  The
Constitution, in all its provisions, looks to an indestructible Union,
composed of indestructible States."  Texas v. White, 7 Wall. 700, 725
(1869), quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869).


    The Constitution created a Federal Government of limited powers.  "The
powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or
to the people."  U. S. Const., Amdt. 10.  The States thus retain
substantial sovereign authority under our constitutional system.  As James
Madison put it:


    "The powers delegated by the proposed Constitution to the federal
government are few and defined.  Those which are to remain in the State
governments are numerous and indefinite. . . . The powers reserved to the
several States will extend to all the objects which, in the ordinary course
of affairs, concern the lives, liberties, and properties of the people, and
the internal order, improvement, and prosperity of the State."  The
Federalist No. 45, pp. 292-293 (C. Rossiter ed. 1961) (J. Madison).


    This federalist structure of joint sovereigns preserves to the people
numerous advantages.  It assures a decentralized government that will be
more sensitive to the diverse needs of a heterogenous society; it increases
opportunity for citizen involvement in democratic processes; it allows for
more innovation and experimentation in government; and it makes government
more responsive by putting the States in competition for a mobile
citizenry.  See generally McConnell, Federalism: Evaluating the Founders'
Design, 54 U. Chi. L. Rev. 1484, 1491-1511 (1987); Merritt, The Guarantee
Clause and State Autonomy: Federalism for a Third Century, 88 Colum. L.
Rev. 1, 3-10 (1988).
    Perhaps the principal benefit of the federalist system is a check on
abuses of government power.  "The `constitutionally mandated balance of
power' between the States and the Federal Government was adopted by the
Framers to ensure the protection of `our fundamental liberties.' "
Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985), quoting
Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 572
(1985) (Powell, J., dissenting).  Just as the separation and independence
of the coordinate Branches of the Federal Government serves to prevent the
accumulation of excessive power in any one Branch, a healthy balance of
power between the States and the Federal Government will reduce the risk of
tyranny and abuse from either front.  Alexander Hamilton explained to the
people of New York, perhaps optimistically, that the new federalist system
would suppress completely "the attempts of the government to establish a
tyranny":


"[I]n a confederacy the people, without exaggeration, may be said to be
entirely the masters of their own fate.  Power being almost always the
rival of power, the general government will at all times stand ready to
check usurpations of the state governments, and these will have the same
disposition towards the general government.  The people, by throwing
themselves into either scale, will infallibly make it preponderate.  If
their rights are invaded by either, they can make use of the other as the
instrument of redress."  The Federalist No. 28, pp. 180-181 (A. Hamilton).


James Madison made much the same point:


"In a single republic, all the power surrendered by the people is submitted
to the administration of a single government; and the usurpations are
guarded against by a division of the government into distinct and separate
departments.  In the compound republic of America, the power surrendered by
the people is first divided between two distinct governments, and then the
portion allotted to each subdivided among distinct and separate
departments.  Hence a double security arises to the rights of the people.
The different governments will control each other, at the same time that
each will be controlled by itself."  The Federalist No. 51, p. 323 (J.
Madison).


    One fairly can dispute whether our federalist system has been quite as
successful in checking government abuse as Hamilton promised, but there is
no doubt about the design.  If this "double security" is to be effective,
there must be a proper balance between the States and the Federal
Government.  These twin powers will act as mutual restraints only if both
are credible.  In the tension between federal and state power lies the
promise of liberty.
    The Federal Government holds a decided advantage in this delicate
balance: the Supremacy Clause.  U. S. Const., Art. VI.  As long as it is
acting within the powers granted it under the Constitution, Congress may
impose its will on the States.  Congress may legislate in areas
traditionally regulated by the States.  This is an extraordinary power in a
federalist system.  It is a power that we must assume Congress does not
exercise lightly.
    The present case concerns a state constitutional provision through
which the people of Missouri establish a qualification for those who sit as
their judges.  This provision goes beyond an area traditionally regulated
by the States; it is a decision of the most fundamental sort for a
sovereign entity.  Through the structure of its government, and the
character of those who exercise government authority, a State defines
itself as a sovereign.  "It is obviously essential to the independence of
the States, and to their peace and tranquility, that their power to
prescribe the qualifications of their own officers . . . should be
exclusive, and free from external interference, except so far as plainly
provided by the Constitution of the United States."  Taylor v. Beckham, 178
U. S. 548, 570-571 (1900).  See also Boyd v. Thayer, 143 U. S. 135, 161
(1892) ("Each State has the power to prescribe the qualifications of its
officers and the manner in which they shall be chosen").
    Congressional interference with this decision of the people of
Missouri, defining their constitutional officers, would upset the usual
constitutional balance of federal and state powers.  For this reason, "it
is incumbent upon the federal courts to be certain of Congress' intent
before finding that federal law overrides" this balance.  Atascadero,
supra, at 243.  We explained recently:


"[I]f Congress intends to alter the `usual constitutional balance between
the States and the Federal Government,' it must make its intention to do so
`unmistakably clear in the language of the statute.'  Atascadero State
Hospital v. Scanlon, 473 U. S. 234, 242 (1985); see also Pennhurst State
School and Hospital v. Halderman, 465 U. S. 89, 99 (1984).  Atascadero was
an Eleventh Amendment case, but a similar approach is applied in other
contexts.  Congress should make its intention `clear and manifest' if it
intends to pre-empt the historic powers of the States, Rice v. Santa Fe
Elevator Corp., 331 U. S. 218, 230 (1947) . . . .  `In traditionally
sensitive areas, such as legislation affecting the federal balance, the
requirement of clear statement assures that the legislature has in fact
faced, and intended to bring into issue, the critical matters involved in
the judicial decision.'  United States v. Bass, 404 U. S. 336, 349 (1971)."
Will v. Michigan Dept. of State Police, 491 U. S. 58, 65 (1989).


This plain statement rule is nothing more than an acknowl edgement that the
States retain substantial sovereign powers under our constitutional scheme,
powers with which Congress does not readily interfere.
    In a recent line of authority, we have acknowledged the unique nature
of state decisions that "go to the heart of representative government."
Sugarman v. Dougall, 413 U. S. 634, 647 (1973).  Sugarman was the first in
a series of cases to consider the restrictions imposed by the Equal
Protection Clause of the Fourteenth Amendment on the ability of state and
local governments to prohibit aliens from public employment.  In that case,
the Court struck down under the Equal Protection Clause a New York City law
that provided a flat ban against the employment of aliens in a wide variety
of city jobs.  Ibid.
    The Court did not hold, however, that alienage could never justify
exclusion from public employment.  We recognized explicitly the States'
constitutional power to establish the qualifications for those who would
govern:


"Just as `the Framers of the Constitution intended the States to keep for
themselves, as provided in the Tenth Amendment, the power to regulate
elections,' Oregon v. Mitchell, 400 U. S. 112, 124-125 (1970) (footnote
omitted) (opinion of Black, J.); see id., at 201 (opinion of Harlan, J.),
and id., at 293-294 (opinion of Stewart, J.), "[e]ach State has the power
to prescribe the qualifications of its officers and the manner in which
they shall be chosen."  Boyd v. Thayer, 143 U. S. 135, 161 (1892).  See
Luther v. Borden, 7 How. 1, 41 (1849); Pope v. Williams, 193 U. S. 621,
632-633 (1904).  Such power inheres in the State by virtue of its
obligation, already noted above, `to preserve the basic conception of a
political community.'  Dunn v. Blumstein, 405 U. S. [330, 344 (1972)].  And
this power and responsibility of the State applies, not only to the
qualifications of voters, but also to persons holding state elective and
important nonelective executive, legislative, and judicial positions, for
officers who participate directly in the formulation, execution, or review
of broad public policy perform functions that go to the heart of
representative government."  Ibid.

    We explained that, while the Equal Protection Clause provides a check
on such state authority, "our scrutiny will not be so demanding where we
deal with matters resting firmly within a State's constitutional
prerogatives."  Id., at 648.  This rule "is no more than . . . a
recognition of a State's constitutional responsibility for the
establishment and operation of its own government, as well as the
qualifications of an appropriately designated class of public office
holders.  U. S. Const. Art. IV, MDRV 4; U. S. Const. Amdt. X; Luther v.
Borden, supra; see In re Duncan, 139 U. S. 449, 461 (1891)."  Ibid.  In
several subsequent cases we have applied the "political function" exception
to laws through which States exclude aliens from positions "intimately
related to the process of democratic self-government."  See Bernal v.
Fainter, 467 U. S. 216, 220 (1984).  See also Nyquist v. Mauclet, 432 U. S.
1, 11 (1977); Foley v. Connelie, 435 U. S. 291, 295-296 (1978); Ambach v.
Norwick, 441 U. S. 68, 73-74 (1979); Cabell v. Chavez-Salido, 454 U. S.
432, 439-441 (1982).  "[W]e have . . . lowered our standard of review when
evaluating the validity of exclusions that entrust only to citizens
important elective and nonelective positions whose operations `go to the
heart of representative government.' "  Bernal, 467 U. S., at 221
(citations omitted).
    These cases stand in recognition of the authority of the people of the
States to determine the qualifications of their most important government
officials. {1}  It is an authority that lies at " `the heart of
representative government.' "  Ibid.  It is a power reserved to the States
under the Tenth Amendment and guaranteed them by that provision of the
Constitution under which the United States "guarantee[s] to every State in
this Union a Republican Form of Government."  U. S. Const., Art. IV, MDRV
4.  See Sugarman, supra, at 648 (citing the Guarantee Clause and the Tenth
Amendment).  See also Merritt, 88 Colum. L. Rev., at 50-55.

    The authority of the people of the States to determine the
qualifications of their government officials is, of course, not without
limit.  Other constitutional provisions, most notably the Fourteenth
Amendment, proscribe certain qualifications; our review of citizenship
requirements under the politicalfunction exception is less exacting, but it
is not absent.  Here, we must decide what Congress did in extending the
ADEA to the States, pursuant to its powers under the Commerce Clause.  See
EEOC v. Wyoming, 460 U. S. 226 (1983) (the extension of the ADEA to
employment by state and local governments was a valid exercise of Congress'
powers under the Commerce Clause).  As against Congress' powers "[t]o
regulate Commerce . . . among the several States," U. S. Const., Art. I,
MDRV 8, cl. 3, the authority of the people of the States to determine the
qualifications of their government officials may be inviolate.
    We are constrained in our ability to consider the limits that the
state-federal balance places on Congress' powers under the Commerce Clause.
See Garcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528
(1985) (declining to review limitations placed on Congress' Commerce Clause
powers by our federal system).  But there is no need to do so if we hold
that the ADEA does not apply to state judges.  Application of the plain
statement rule thus may avoid a potential constitutional problem.  Indeed,
inasmuch as this Court in Garcia has left primarily to the political
process the protection of the States against intrusive exercises of
Congress' Commerce Clause powers, we must be absolutely certain that
Congress intended such an exercise.  "[T]o give the state-displacing weight
of federal law to mere congressional ambiguity would evade the very
procedure for lawmaking on which Garcia relied to protect states'
interests."  L. Tribe, American Constitutional Law MDRV 6-25, p. 480 (2d
ed. 1988).

B
    In 1974, Congress extended the substantive provisions of the ADEA to
include the States as employers.  Pub. L. 93-259, MDRV 28(a), 88 Stat. 74;
29 U. S. C. MDRV 630(b)(2).  At the same time, Congress amended the
definition of "employee" to exclude all elected and most high-ranking
government officials.  Under the Act, as amended:


    "The term `employee' means an individual employed by any employer
except that the term `employee' shall not include any person elected to
public office in any State or political subdivision of any State by the
qualified voters thereof, or any person chosen by such officer to be on
such officer's personal staff, or an appointee on the policymaking level or
an immediate adviser with respect to the exercise of the constitutional or
legal powers of the office."  29 U. S. C. MDRV 630(f).


    Governor Ashcroft contends that the MDRV 630(f) exclusion of certain
public officials also excludes judges, like petitioners, who are appointed
to office by the Governor and are then subject to retention election.  The
Governor points to two passages in MDRV 630(f).  First, he argues, these
judges are selected by an elected official and, because they make policy,
are "appointee[s] on the policymaking level."
    Petitioners counter that judges merely resolve factual disputes and
decide questions of law; they do not make policy.  Moreover, petitioners
point out that the policymaking-level exception is part of a trilogy, tied
closely to the electedofficial exception.  Thus, the Act excepts elected
officials and: (1) "any person chosen by such officer to be on such
officer's personal staff"; (2) "an appointee on the policymaking level";
and (3) "an immediate advisor with respect to the constitutional or legal
powers of the office."  Applying the maxim of statutory construction
noscitur a sociis -- that a word is known by the company it keeps --
petitioners argue that since (1) and (3) refer only to those in close
working relationships with elected officials, so too must (2).  Even if it
can be said that judges may make policy, petitioners contend, they do not
do so at the behest of an elected official.
    Governor Ashcroft relies on the plain language of the statute: it
exempts persons appointed "at the policymaking level."  The Governor argues
that state judges, in fashioning and applying the common law, make policy.
Missouri is a common law state.  See Mo. Rev. Stat. MDRV 1.010 (1986)
(adopting "[t]he common law of England" consistent with federal and state
law).  The common law, unlike a constitution or statute, provides no
definitive text; it is to be derived from the interstices of prior opinions
and a well-considered judgment of what is best for the community.  As
Justice Holmes put it:


"The very considerations which judges most rarely mention, and always with
an apology, are the secret root from which the law draws all the juices of
life.  I mean, of course, considerations of what is expedient for the
community concerned.  Every important principle which is developed by
litigation is in fact and at bottom the result of more or less definitely
understood views of public policy; most generally, to be sure, under our
practice and traditions, the unconscious result of instinctive preferences
and inarticulate convictions, but nonetheless traceable to views of public
policy in the last analysis."  O. Holmes, The Common Law 35-36 (1881).


    Governor Ashcroft contends that Missouri judges make policy in other
ways as well.  The Missouri Supreme Court and Courts of Appeals have
supervisory authority over inferior courts.  Mo. Const., Art. V, MDRV 4.
The Missouri Supreme Court has the constitutional duty to establish rules
of practice and procedure for the Missouri court system, and inferior
courts exercise policy judgment in establishing local rules of practice.
See Mo. Const., Art. V, MDRV 5.  The state courts have supervisory powers
over the state bar, with the Missouri Supreme Court given the authority to
develop disciplinary rules.  See Mo. Rev. Stat. 15 484.040, 484.200484.270
(1986); Rules Governing the Missouri Bar and the Judiciary (1991).
    The Governor stresses judges' policymaking responsibilities, but it is
far from plain that the statutory exception requires that judges actually
make policy.  The statute refers to appointees "on the policymaking level,"
not to appointees "who make policy."  It may be sufficient that the
appointee is in a position requiring the exercise of discretion concerning
issues of public importance.  This certainly describes the bench,
regardless of whether judges might be considered policymakers in the same
sense as the executive or legislature.
    Nonetheless, "appointee at the policymaking level," particularly in the
context of the other exceptions that surround it, is an odd way for
Congress to exclude judges; a plain statement that judges are not
"employees" would seem the most efficient phrasing.  But in this case we
are not looking for a plain statement that judges are excluded.  We will
not read the ADEA to cover state judges unless Congress has made it clear
that judges are included.  This does not mean that the Act must mention
judges explicitly, though it does not.  Cf. Dellmuth v. Muth, 491 U. S.
223, 233 (Scalia, J., concurring).  Rather, it must be plain to anyone
reading the Act that it covers judges.  In the context of a statute that
plainly excludes most important state public officials, "appointee on the
policymaking level" is sufficiently broad that we cannot conclude that the
statute plainly covers appointed state judges.  Therefore, it does not.
    The ADEA plainly covers all state employees except those excluded by
one of the exceptions.  Where it is unambiguous that an employee does not
fall within one of the exceptions, the Act states plainly and unequivocally
that the employee is included.  It is at least ambiguous whether a state
judge is an "appointee on the policymaking level."
    Governor Ashcroft points also to the "person elected to public office"
exception.  He contends that because petitioners -- although appointed to
office initially -- are subject to retention election, they are "elected to
public office" under the ADEA.  Because we conclude that petitioners fall
presumptively under the policymaking-level exception, we need not answer
this question.

C
    The extension of the ADEA to employment by state and local governments
was a valid exercise of Congress' powers under the Commerce Clause.  EEOC
v. Wyoming, 460 U. S. 226 (1983).  In Wyoming, we reserved the questions
whether Congress might also have passed the ADEA extension pursuant to its
powers under MDRV 5 of the Fourteenth Amendment, and whether the extension
would have been a valid exercise of that power.  Id., at 243, and n. 18.
We noted, however, that the principles of federalism that constrain
Congress' exercise of its Commerce Clause powers are attenuated when
Congress acts pursuant to its powers to enforce the Civil War Amendments.
Id., at 243, and n. 18, citing City of Rome v. United States, 446 U. S.
156, 179 (1980).  This is because those "Amendments were specifically
designed as an expansion of federal power and an intrusion on state
sovereignty."  City of Rome, supra, at 179.  One might argue, therefore,
that if Congress passed the ADEA extension under its MDRV 5 powers, the
concerns about federal intrusion into state government that compel the
result in this case might carry less weight.
    By its terms, the Fourteenth Amendment contemplates interference with
state authority: "No State shall . . . deny to any person within its
jurisdiction the equal protection of the laws."  U. S. Const., Amdt. 14.
But this Court has never held that the Amendment may be applied in complete
disregard for a State's constitutional powers.  Rather, the Court has
recognized that the States' power to define the qualifications of their
officeholders has force even as against the proscriptions of the Fourteenth
Amendment.
    We return to the political-function cases.  In Sugarman, the Court
noted that "aliens as a class `are a prime example of a "discrete and
insular" minority (see United States v. Carolene Products Co., 304 U. S.
144, 152-153, n. 4 (1938)).' and that classifications based on alienage are
`subject to close judicial scrutiny.' "  413 U. S., at 642, quoting Graham
v. Richardson, 403 U. S. 365, 372 (1971).  The Sugarman Court held that New
York City had insufficient interest in preventing aliens from holding a
broad category of public jobs to justify the blanket prohibition.  413 U.
S., at 647.  At the same time, the Court established the rule that scrutiny
under the Equal Protection Clause "will not be so demanding where we deal
with matters resting firmly within a State's constitutional prerogatives."
Id., at 648.  Later cases have reaffirmed this practice.  See Foley v.
Connelie, 435 U. S. 291 (1978); Ambach v. Norwick, 441 U. S. 68 (1979);
Cabell v. Chavez-Salido, 454 U. S. 432 (1982).  These cases demonstrate
that the Fourteenth Amendment does not override all principles of
federalism.
    Of particular relevance here is Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1 (1981).  The question in that case was whether
Congress, in passing a section of the Developmentally Disabled Assistance
and Bill of Rights Act, 42 U. S. C. MDRV 6010 (1982 ed.), intended to place
an obligation on the States to provide certain kinds of treatment to the
disabled.  Respondent Halderman argued that Congress passed MDRV 6010
pursuant to MDRV 5 of the Fourteenth Amendment, and therefore that it was
mandatory on the States, regardless of whether they received federal funds.
Petitioner and the United States, as respondent, argued that, in passing
MDRV 6010, Congress acted pursuant to its spending power alone.
Consequently, MDRV 6010 applied only to States accepting federal funds
under the Act.
    The Court was required to consider the "appropriate test for
determining when Congress intends to enforce" the guarantees of the
Fourteenth Amendment.  451 U. S., at 16.  We adopted a rule fully cognizant
of the traditional power of the States: "Because such legislation imposes
congressional policy on a State involuntarily, and because it often
intrudes on traditional state authority, we should not quickly attribute to
Congress an unstated intent to act under its authority to enforce the
Fourteenth Amendment."  Ibid.  Because Congress nowhere stated its intent
to impose mandatory obligations on the States under its MDRV 5 powers, we
concluded that Congress did not do so.  Id., at 16.
    The Pennhurst rule looks much like the plain statement rule we apply
today.  In EEOC v. Wyoming, the Court explained that Pennhurst established
a rule of statutory construction to be applied where statutory intent is
ambiguous.  460 U. S., at 244, n. 18.  In light of the ADEA's clear
exclusion of most important public officials, it is at least ambiguous
whether Congress intended that appointed judges nonetheless be included.
In the face of such ambiguity, we will not attribute to Congress an intent
to intrude on state governmental functions regardless of whether Congress
acted pursuant to its Commerce Clause powers or MDRV 5 of the Fourteenth
Amendment.

III
    Petitioners argue that, even if they are not covered by the ADEA, the
Missouri Constitution's mandatory retirement provision for judges violates
the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution.  Petitioners contend that there is no rational basis
for the decision of the people of Missouri to preclude those age 70 and
over from serving as their judges.  They claim that the mandatory
retirement provision makes two irrational distinctions: between judges who
have reached age 70 and younger judges, and between judges 70 and over and
other state employees of the same age who are not subject to mandatory
retirement.
    Petitioners are correct to assert their challenge at the level of
rational basis.  This Court has said repeatedly that age is not a suspect
classification under the Equal Protection Clause.  See Massachusetts Bd. of
Retirement v. Murgia, 427 U. S. 307, 313-314 (1976); Vance v. Bradley, 440
U. S. 93, 97 (1979); Cleburne v. Cleburne Living Center, Inc., 473 U. S.
432, 441 (1985).  Nor do petitioners claim that they have a fundamental
interest in serving as judges.  The State need therefore assert only a
rational basis for its age classification.  See Murgia, supra, at 314;
Bradley, 440 U. S., at 97.  In cases where a classification burdens neither
a suspect group nor a fundamental interest, "courts are quite reluctant to
overturn governmental action on the ground that it denies equal protection
of the laws."  Ibid.  In this case, we are dealing not merely with
government action, but with a state constitutional provision approved by
the people of Missouri as a whole.  This constitutional provision reflects
both the considered judgment of the state legislature that proposed it and
that of the citizens of Missouri who voted for it.  See 1976 Mo. Laws 812
(proposing the mandatory retirement provision of MDRV 26); Mo. Const., Art.
XII, 15 2(a), 2(b) (describing the amendment process).  "[W]e will not
overturn such a [law] unless the varying treatment of different groups or
persons is so unrelated to the achievement of any combination of legitimate
purposes that we can only conclude that the [people's] actions were
irrational."  Bradley, supra, at 97.  See also Pennell v. San Jose, 485 U.
S. 1, 14 (1988).
    Governor Ashcroft cites O'Neil v. Baine, 568 S. W. 2d 761 (Mo. 1978)
(en banc) as a fruitful source of rational bases.  In O'Neil, the Missouri
Supreme Court -- to whom Missouri Constitution Article V, MDRV 26, applies
-- considered an equal protection challenge to a state statute that
established a mandatory retirement age of 70 for state magistrate and
probate judges.  The court upheld the statute, declaring numerous
legitimate state objectives it served: "[t]he statute draws a line at a
certain age which attempts to uphold the high competency for judicial posts
and which fulfills a societal demand for the highest caliber of judges in
the system"; "the statute . . . draws a legitimate line to avoid the
tedious and often perplexing decisions to determine which judges after a
certain age are physically and mentally qualified and those who are not";
"mandatory retirement increases the opportunity for qualified persons . . .
to share in the judiciary and permits an orderly attrition through
retirement"; "such a mandatory provision also assures predictability and
ease in establishing and administering judges' pension plans."  Id., at
766-767.  Any one of these explanations is sufficient to rebut the claim
that "the varying treatment of different groups or persons [in MDRV 26] is
so unrelated to the achievement of any combination of legitimate purposes
that we can only conclude that the [people's] actions were irrational."
Bradley, supra, at 97.
    The people of Missouri have a legitimate, indeed compelling, interest
in maintaining a judiciary fully capable of performing the demanding tasks
that judges must perform.  It is an unfortunate fact of life that physical
and mental capacity sometimes diminish with age.  See Bradley, supra, at
111112; Murgia, supra, at 315.  The people may therefore wish to replace
some older judges.  Voluntary retirement will not always be sufficient.
Nor may impeachment -- with its public humiliation and elaborate procedural
machinery -- serve acceptably the goal of a fully functioning judiciary.
See Mo. Const., Art. VII, 15 1-3.
    The election process may also be inadequate.  Whereas the electorate
would be expected to discover if their governor or state legislator were
not performing adequately and vote the official out of office, the same may
not be true of judges.  Most voters never observe state judges in action,
nor read judicial opinions.  State judges also serve longer terms of office
than other public officials, making them -- deliberately -- less dependent
on the will of the people.  Compare Mo. Const., Art. V, MDRV 19 (Supreme
Court Justices and Court of Appeals judges serve 12-year terms; Circuit
Court judges six years) with Mo. Const., Art. IV, MDRV 17 (governor,
lieutenant governor, secretary of state, state treasurer, and attorney
general serve 4-year terms) and Mo. Const., Art. III, MDRV 11 (state
representatives serve 2-year terms; state senators four years).  Most of
these judges do not run in ordinary elections.  See Mo. Const., Art. V,
MDRV 25(a).  The people of Missouri rationally could conclude that
retention elections -- in which state judges run unopposed at relatively
long intervals -- do not serve as an adequate check on judges whose
performance is deficient.  Mandatory retirement is a reasonable response to
this dilemma.
    This is also a rational explanation for the fact that state judges are
subject to a mandatory retirement provision, while other state officials --
whose performance is subject to greater public scrutiny, and who are
subject to more standard elections -- are not.  Judges' general lack of
accountability explains also the distinction between judges and other state
employees, in whom a deterioration in performance is more readily
discernible and who are more easily removed.
    The Missouri mandatory retirement provision, like all legal
classifications, is founded on a generalization.  It is far from true that
all judges suffer significant deterioration in performance at age 70.  It
is probably not true that most do.  It may not be true at all.  But a State
" `does not violate the Equal Protection Clause merely because the
classifications made by its laws are imperfect.' "  Murgia, supra, at 316,
quoting Dandridge v. Williams, 397 U. S. 471, 485 (1970).  "In an equal
protection case of this type . . . those challenging the . . . judgment [of
the people] must convince the court that the . . . facts on which the
classification is apparently based could not reasonably be conceived to be
true by the . . . decisionmaker."  Bradley, 440 U. S., at 111.  The people
of Missouri rationally could conclude that the threat of deterioration at
age 70 is sufficiently great, and the alternatives for removal sufficiently
inadequate, that they will require all judges to step aside at age 70.
This classification does not violate the Equal Protection Clause.

IV
    The people of Missouri have established a qualification for those who
would be their judges.  It is their prerogative as citizens of a sovereign
State to do so.  Neither the ADEA nor the Equal Protection Clause prohibits
the choice they have made.  Accordingly, the judgment of the Court of
Appeals is

Affirmed.
------------------------------------------------------------------------------
1
    Justice White believes that the "political function" cases are
inapposite because they involve limitations on "judicially-created
scrutiny" rather than "Congress' legislative authority," which is at issue
here.  Post, at 4.  He apparently suggests that Congress has greater
authority to interfere with state sovereignty when acting pursuant to its
Commerce Clause powers than this Court does when applying the Fourteenth
Amendment.  Elsewhere in his opinion, Justice White emphasizes that the
Fourteenth Amendment was designed as an intrusion on state sovereignty.
See post, at 7-8.  That being the case, our diminished scrutiny of state
laws in the "political function" cases, brought under the Fourteenth
Amendment, argues strongly for special care when interpreting alleged
congressional intrusions into state sovereignty under the Commerce Clause.





Subject: 90-50 -- CONCUR, GREGORY v. ASHCROFT

 


    SUPREME COURT OF THE UNITED STATES


No. 90-50



ELLIS GREGORY, Jr. and ANTHONY P. NUGENT, Jr., JUDGES, PETITIONERS v. JOHN
D. ASHCROFT, GOVERNOR OF MISSOURI

on writ of certiorari to the united states court of appeals for the eighth
circuit


[June 20, 1991]



    Justice White, with whom Justice Stevens joins, concurring in part,
dissenting in part, and concurring in the judgment.

    I agree with the majority that neither the ADEA nor the Equal
Protection Clause prohibits Missouri's mandatory retirement provision as
applied to petitioners, and I therefore concur in the judgment and in Parts
I and III of the majority's opinion.  I cannot agree, however, with the
majority's reasoning in Part II of its opinion, which ignores several areas
of well-established precedent and announces a rule that is likely to prove
both unwise and infeasible.  That the majority's analysis in Part II is
completely unnecessary to the proper resolution of this case makes it all
the more remarkable.

I
    In addition to petitioners' equal protection claim, we granted
certiorari to decide the following question:

    "Whether appointed Missouri state court judges are `appointee[s] on the
policymaking level' within the meaning of the Age Discrimination in
Employment Act (`ADEA'), 28 U. S. C. 15 621-34 (1982 & Supp. V 1987), and
therefore exempted from the ADEA's general prohibition of mandatory
retirement and thus subject to the mandatory retirement provision of
Article V, Section 26 of the Missouri Constitution."  Pet. for Cert. i.


    The majority, however, chooses not to resolve that issue of statutory
construction.  Instead, it holds that whether or not the ADEA can fairly be
read to exclude state judges from its scope, "[w]e will not read the ADEA
to cover state judges unless Congress has made it clear that judges are
included."  Ante, at 13 (emphasis in original).  I cannot agree with this
"plain statement" rule because it is unsupported by the decisions upon
which the majority relies, contrary to our Tenth Amendment jurisprudence,
and fundamentally unsound.
    Among other things, the ADEA makes it "unlawful for an employer -- (1)
to fail or refuse to hire or to discharge any individual or otherwise
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's age."  29 U. S. C. MDRV 623(a).  In 1974, Congress amended the
definition of "employer" in the ADEA to include "a State or political
subdivision of a State."  29 U. S. C. MDRV 630(b)(2).  With that amendment,
"there is no doubt what the intent of Congress was: to extend the
application of the ADEA to the States."  EEOC v. Wyoming, 460 U. S. 226,
244, n. 18 (1983).
    The dispute in this case therefore is not whether Congress has outlawed
age discrimination by the States.  It clearly has.  The only question is
whether petitioners fall within the definition of "employee" in the Act,
MDRV 630(f), which contains exceptions for elected officials and certain
appointed officials.  If petitioners are "employee[s]," Missouri's
mandatory retirement provision clearly conflicts with the
antidiscrimination provisions of the ADEA.  Indeed, we have noted that the
"policies and substantive provisions of the [ADEA] apply with especial
force in the case of mandatory retirement provisions."  Western Air Lines
v. Criswell, 472 U. S. 400, 410 (1985).  Pre-emption therefore is
automatic, since "state law is pre-empted to the extent that it actually
conflicts with federal law."  Pacific Gas & Electric Co. v. State Energy
Resources Conservation and Development Comm'n, 461 U. S. 190, 204 (1983).
The majority's federalism concerns are irrelevant to such "actual conflict"
pre-emption.  " `The relative importance to the State of its own law is not
material when there is a conflict with a valid federal law, for the Framers
of our Constitution provided that the federal law must prevail.' "
Fidelity Federal Savings & Loan Assn. v. De la Cuesta, 458 U. S. 141, 153
(1982), quoting Free v. Bland, 369 U. S. 663, 666 (1962).
    While acknowledging this principle of federal legislative supremacy,
see ante, at 6, the majority nevertheless imposes upon Congress a "plain
statement" requirement.  The majority claims to derive this requirement
from the plain statement approach developed in our Eleventh Amendment
cases, see, e. g., Atascadero State Hospital v. Scanlon, 473 U. S. 234, 243
(1985), and applied two Terms ago in Will v. Michigan Dept. of State
Police, 491 U. S. 58, 65 (1989).  The issue in those cases, however, was
whether Congress intended a particular statute to extend to the States at
all.  In Atascadero, for example, the issue was whether States could be
sued under MDRV 504 of the Rehabilitation Act of 1973, 29 U. S. C. MDRV
794.  Similarly, the issue in Will was whether States could be sued under
42 U. S. C. MDRV 1983.  In the present case, by contrast, Congress has
expressly extended the coverage of the ADEA to the States and their
employees.  Its intention to regulate age discrimination by States is thus
"unmistakably clear in the language of the statute."  Atasca dero, supra,
at 242.  See Davidson v. Board of Governors of State Colleges and
Universities, 920 F. 2d. 441, 443 (CA7 1990) (ADEA satisfies "clear
statement" requirement).  The only dispute is over the precise details of
the statute's application.  We have never extended the plain statement
approach that far, and the majority offers no compelling reason for doing
so.
    The majority also relies heavily on our cases addressing the
constitutionality of state exclusion of aliens from public employment.  See
ante, at 7-9, 14-16.  In those cases, we held that although restrictions
based on alienage ordinarily are subject to strict scrutiny under the Equal
Protection Clause, see Graham v. Richardson, 403 U. S. 365, 372 (1971), the
scrutiny will be less demanding for exclusion of aliens "from positions
intimately related to the process of democratic self-government."  Bernal
v. Fainter, 467 U. S. 216, 220 (1984).  This narrow "political function"
exception to the strict scrutiny standard is based on the "State's
historical power to exclude aliens from participation in its democratic
political institutions."  Sugarman v. Dougall, 413 U. S. 634, 648 (1973).
    It is difficult to see how the "political function" exception supports
the majority's plain statement rule.  First, the exception merely reflects
a determination of the scope of the rights of aliens under the Equal
Protection Clause.  Reduced scrutiny is appropriate for certain political
functions because "the right to govern is reserved to citizens."  Foley v.
Con nelie, 435 U. S. 291, 297 (1978); see also Sugarman, supra, at 648-649.
This conclusion in no way establishes a method for interpreting rights that
are statutorily created by Congress, such as the protection from age
discrimination in the ADEA.  Second, it is one thing to limit
judicially-created scrutiny, and it is quite another to fashion a restraint
on Congress' legislative authority, as does the majority; the latter is
both counter-majoritarian and an intrusion on a co-equal branch of the
federal government.  Finally, the majority does not explicitly restrict its
rule to "functions that go to the heart of representative government," id.,
at 647, and may in fact be extending it much further to all "state
governmental functions."  See ante, at 16.
    The majority's plain statement rule is not only unprecedented, it
directly contravenes our decisions in Garcia v. San Antonio Metropolitan
Transit Authority, 469 U. S. 528 (1985), and South Carolina v. Baker, 485
U. S. 505 (1988).  In those cases we made it clear "that States must find
their protection from congressional regulation through the national
political process, not through judicially defined spheres of unregulable
state activity."  Id., at 512.  We also rejected as "unsound in principle
and unworkable in practice" any test for state immunity that requires a
judicial determination of which state activities are "traditional,"
"integral," or "necessary."  Garcia, supra, at 546.  The majority
disregards those decisions in its attempt to carve out areas of state
activity that will receive special protection from federal legislation.
    The majority's approach is also unsound because it will serve only to
confuse the law.  First, the majority fails to explain the scope of its
rule.  Is the rule limited to federal regulation of the qualifications of
state officials?  See ante, at 10.  Or does it apply more broadly to the
regulation of any "state governmental functions"?  See ante, at 16.
Second, the majority does not explain its requirement that Congress' intent
to regulate a particular state activity be "plain to anyone reading [the
federal statute]."  See ante, at 13.  Does that mean that it is now
improper to look to the purpose or history of a federal statute in
determining the scope of the statute's limitations on state activities?  If
so, the majority's rule is completely inconsistent with our pre-emption
jurisprudence.  See, e. g., Hillsborough County v. Automated Medical
Laboratories, Inc., 471 U. S. 707, 715 (1985) (pre-emption will be found
where there is a "clear and manifest purpose" to displace state law;
emphasis added).  The vagueness of the majority's rule undoubtedly will
lead States to assert that various federal statutes no longer apply to a
wide variety of State activities if Congress has not expressly referred to
those activities in the statute.  Congress, in turn, will be forced to
draft long and detailed lists of which particular state functions it meant
to regulate.
    The imposition of such a burden on Congress is particularly out of
place in the context of the ADEA.  Congress already has stated that all
"individual[s] employed by any employer" are protected by the ADEA unless
they are expressly excluded by one of the exceptions in the definition of
"employee."  See 29 U. S. C. MDRV 630(f).  The majority, however, turns the
statute on its head, holding that state judges are not protected by the
ADEA because "Congress has [not] made it clear that judges are included."
Ante, at 13 (emphasis in original).  Cf. EEOC v. Wyoming, 460 U. S. 226
(1983), where we held that state game wardens are covered by the ADEA, even
though such employees are not expressly included within the ADEA's scope.
    The majority asserts that its plain statement rule is helpful in
avoiding a "potential constitutional problem."  Ante, at 10.  It is far
from clear, however, why there would be a constitutional problem if the
ADEA applied to state judges, in light of our decisions in Garcia and
Baker, discussed above.  As long as "the national political process did not
operate in a defective manner, the Tenth Amendment is not implicated."
Baker, supra, at 512.  There is no claim in this case that the political
process by which the ADEA was extended to state employees was inadequate to
protect the States from being "unduly burden[ed]" by the Federal
Government.  See Garcia, supra, at 556.  In any event, as discussed below,
a straightforward analysis of the ADEA's definition of "employee" reveals
that the ADEA does not apply here.  Thus, even if there were potential
constitutional problems in extending the ADEA to state judges, the
majority's proposed plain statement rule would not be necessary to avoid
them in this case.  Indeed, because this case can be decided purely on the
basis of statutory interpretation, the majority's announcement of its plain
statement rule, which purportedly is derived from constitutional
principles, violates our general practice of avoiding the unnecessary
resolution of constitutional issues.
    My disagreement with the majority does not end with its unwarranted
announcement of the plain statement rule.  Even more disturbing is its
treatment of Congress' power under MDRV 5 of the Fourteenth Amendment.  See
ante, at 1416.  Section 5 provides that "[t]he Congress shall have power to
enforce, by appropriate legislation, the provisions of this article."
Despite that sweeping constitutional delegation of authority to Congress,
the majority holds that its plain statement rule will apply with full force
to legislation enacted to enforce the Fourteenth Amendment.  The majority
states: "In the face of . . . ambiguity, we will not attribute to Congress
an intent to intrude on state governmental functions regardless of whether
Congress acted pursuant to its Commerce Clause powers or MDRV 5 of the
Fourteenth Amendment."  Ante, at 16 (emphasis added). {1}
    The majority's failure to recognize the special status of legislation
enacted pursuant to MDRV 5 ignores that, unlike Congress' Commerce Clause
power, "[w]hen Congress acts pursuant to MDRV 5, not only is it exercising
legislative authority that is plenary within the terms of the
constitutional grant, it is exercising that authority under one section of
a constitutional Amendment whose other sections by their own terms embody
limitations on state authority."  Fitzpatrick v. Bitzer, 427 U. S. 445, 456
(1976).  Indeed, we have held that "principles of federalism that might
otherwise be an obstacle to congressional authority are necessarily
overridden by the power to enforce the Civil War Amendments `by appropriate
legislation.'  Those Amendments were specifically designed as an expansion
of federal power and an intrusion on state sovereignty."  City of Rome v.
United States, 446 U. S. 156, 179 (1980); see also EEOC v. Wyoming, 460 U.
S., at 243, n. 18.   The majority relies upon Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1 (1981), see ante, at 15-16, but that
case does not support its approach.  There, the Court merely stated that
"we should not quickly attribute to Congress an unstated intent to act
under its authority to enforce the Fourteenth Amendment."  451 U. S., at
16.  In other words, the Pennhurst presumption was designed only to answer
the question whether a particular piece of legislation was enacted pursuant
to MDRV 5.  That is very different from the majority's apparent holding
that even when Congress is acting pursuant to MDRV 5, it nevertheless must
specify the precise details of its enactment.
    The majority's departures from established precedent are even more
disturbing when it is realized, as discussed below, that this case can be
affirmed based on simple statutory construction.
II
    The statute at issue in this case is the ADEA's definition of
"employee," which provides:

"The term `employee' means an individual employed by any employer except
that the term `employee' shall not include any person elected to public
office in any State or political subdivision of any State by the qualified
voters thereof, or any person chosen by such officer to be on such
officer's personal staff, or an appointee on the policymaking level or an
immediate adviser with respect to the exercise of the constitutional or
legal powers of the office.  The exemption set forth in the preceding
sentence shall not include employees subject to the civil service laws of a
State government, governmental agency, or political subdivision."  29 U. S.
C. MDRV 630(f).


    A parsing of that definition reveals that it excludes from the
definition of "employee" (and thus the coverage of the ADEA) four types of
(non-civil service) state and local employees: (1) persons elected to
public office; (2) the personal staff of elected officials; (3) persons
appointed by elected officials to be on the policymaking level; and (4) the
immediate advisers of elected officials with respect to the constitutional
or legal powers of the officials' offices.
    The question before us is whether petitioners fall within the third
exception.  Like the Court of Appeals, see 898 F. 2d 598, 600 (CA8 1990), I
assume that petitioners, who were initially appointed to their positions by
the Governor of Missouri, are "appointed" rather than "elected" within the
meaning of the ADEA.  For the reasons below, I also conclude that
petitioners are "on the policymaking level."  {2}    "Policy" is defined as
"a definite course or method of action selected (as by a government,
institution, group, or individual) from among alternatives and in the light
of given conditions to guide and usu[ally] determine present and future
decisions."  Webster's Third New International Dictionary 1754 (1976).
Applying that definition, it is clear that the decisionmaking engaged in by
common-law judges, such as petitioners, places them "on the policymaking
level."  In resolving disputes, although judges do not operate with
unconstrained discretion, they do choose "from among alternatives" and
elaborate their choices in order "to guide and . . . determine present and
future decisions."  The quotation from Justice Holmes in the majority's
opinion, see ante, at 12, is an eloquent description of the policymaking
nature of the judicial function.  Justice Cardozo also stated it well:

"Each [common-law judge] indeed is legislating within the limits of his
competence.  No doubt the limits for the judge are narrower.  He legislates
only between gaps.  He fills the open spaces in the law. . . .  [W]ithin
the confines of these open spaces and those of precedent and tradition,
choice moves with a freedom which stamps its action as creative.  The law
which is the resulting product is not found, but made."  B. Cardozo, The
Nature of the Judicial Process 113-115 (1921).


    Moreover, it should be remembered that the statutory exception refers
to appointees "on the policymaking level," not "policymaking employees."
Thus, whether or not judges actually make policy, they certainly are on the
same level as policymaking officials in other branches of government and
therefore are covered by the exception.  The degree of responsibility
vested in judges, for example, is comparable to that of other officials
that have been found by the lower courts to be on the policymaking level.
See, e. g., EEOC v. Reno, 758 F. 2d 581 (CA11 1985) (assistant state
attorney); EEOC v. Board of Trustees of Wayne Cty. Comm. Coll., 723 F. 2d
509 (CA6 1983) (president of community college).
    Petitioners argue that the "appointee[s] on the policymaking level"
exception should be construed to apply "only to persons who advise or work
closely with the elected official that chose the appointee."  Brief for
Petitioners 18.  In support of that claim, petitioners point out that the
exception is "sandwiched" between the "personal staff" and "immediate
adviser" exceptions in MDRV 630(f), and thus should be read as covering
only similar employees.
    Petitioners' premise, however, does not prove their conclusion.  It is
true that the placement of the "appointee" exception between the "personal
staff" and "immediate adviser" exceptions suggests a similarity among the
three.  But the most obvious similarity is simply that each of the three
sets of employees are connected in some way with elected officials: the
first and third sets have a certain working relationship with elected
officials, while the second is appointed by elected officials.  There is no
textual support for concluding that the second set must also have a close
working relationship with elected officials.  Indeed, such a reading would
tend to make the "appointee" exception superfluous since the "personal
staff" and "immediate adviser" exceptions would seem to cover most
appointees who are in a close working relationship with elected officials.
    Petitioners seek to rely on legislative history, but it does not help
their position.  There is little legislative history discussing the
definition of "employee" in the ADEA, so petitioners point to the
legislative history of the identical definition in Title VII, 42 U. S. C.
MDRV 2000e(f).  If anything, that history tends to confirm that the
"appointee[s] on the policymaking level" exception was designed to exclude
from the coverage of the ADEA all high-level appointments throughout state
government structures, including judicial appointments.
    For example, during the debates concerning the proposed extension of
Title VII to the States, Senator Ervin repeatedly expressed his concern
that the (unamended) definition of "employee" would be construed to reach
those "persons who exercise the legislative, executive, and judicial powers
of the States and political subdivisions of the States."  118 Cong. Rec.
1838 (1972) (emphasis added).  Indeed, he expressly complained that
"[t]here is not even an exception in the [unamended] bill to the effect
that the EEOC will not have jurisdiction over . . . State judges, whether
they are elected or appointed to office."  Id., at 1677.  Also relevant is
Senator Taft's comment that, in order to respond to Senator Ervin's
concerns, he was willing to agree to an exception not only for elected
officials, but also for "those at the top decisionmaking levels in the
executive and judicial branch as well."  Id., at 1838.
    The definition of "employee" subsequently was modified to exclude the
four categories of employees discussed above.  The Conference Committee
that added the "appointee[s] on the policymaking level" exception made
clear the separate nature of that exception:

    "It is the intention of the conferees to exempt elected officials and
members of their personal staffs, and persons appointed by such elected
officials as advisors or to policymaking positions at the highest levels of
the departments or agencies of State or local governments, such as cabinet
officers, and persons with comparable responsibilities at the local level."
H. R. Conf. Rep. No. 92899, pp. 15-16 (1972) (emphasis added).


    The italicized "or" in that statement indicates, contrary to
petitioners' argument, that appointed officials need not be advisers to be
covered by the exception.  Rather, it appears that "Congress intended two
categories: policymakers, who need not be advisers; and advisers, who need
not be policymakers."  EEOC v. Massachusetts, 858 F. 2d 52, 56 (CA1 1988).
This reading is confirmed by a statement by one of the House Managers,
Representative Erlenborn, who explained that "[i]n the conference, an
additional qualification was added, exempting those people appointed by
officials at the State and local level in policymaking positions."  118
Cong. Rec., at 7567.
    In addition, the phrase "the highest levels" in the Conference Report
suggests that Congress' intent was to limit the exception "down the chain
of command, and not so much across agencies or departments."  EEOC v.
Massachusetts, 858 F. 2d, at 56.  I also agree with the First Circuit's
conclusion that even lower court judges fall within the exception because
"each judge, as a separate and independent judicial officer, is at the very
top of his particular `policymaking' chain of command, responding . . .
only to a higher appellate court."  Ibid.
    For these reasons, I would hold that petitioners are excluded from the
coverage of the ADEA because they are "appointee[s] on the policymaking
level" under 29 U. S. C. MDRV 630(f). {3}

    I join Parts I and III of the Court's opinion and concur in its
judgment.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    In EEOC v. Wyoming, 460 U. S. 226 (1983), we held that the extension of
the ADEA to the States was a valid exercise of congressional power under
the Commerce Clause.  We left open, however, the issue whether it was also
a valid exercise of Congress' power under MDRV 5 of the Fourteenth
Amendment.  Cf. Fitzpatrick v. Bitzer, 427 U. S. 445, 453, n. 9 (1976)
(extension of Title VII to States was pursuant to Congress' MDRV 5 power).
Although we need not resolve the issue in this case, I note that at least
two Courts of Appeals have held that the ADEA was enacted pursuant to
Congress' MDRV 5 power.  See Heiar v. Crawford County, 746 F. 2d 1190,
11931194 (CA7 1984); Ramirez v. Puerto Rico Fire Service, 715 F. 2d 694,
700 (CA1 1983).

2
    Most of the lower courts that have addressed the issue have concluded
that appointed state judges fall within the "appointee[s] on the
policymaking level" exception.  See 898 F. 2d 598 (CA8 1990) (case below);
EEOC v. Massachusetts, 858 F. 2d 52 (CA1 1988); Sabo v. Casey, 757 F. Supp.
587 (ED Pa. 1991); In re Stout, 521 Pa. 571, 559 A. 2d 489 (1989); see also
EEOC v. Illinois, 721 F. Supp. 156 (ND Ill. 1989).  But see EEOC v.
Vermont, 904 F. 2d 794 (CA2 1990); Schlitz v. Virginia, 681 F. Supp. 330
(ED Va.), rev'd on other grounds, 854 F. 2d 43 (CA4 1988).

3
    The dissent argues that we should defer to the EEOC's view regarding
the scope of the "policymaking level" exception.  See post, at 8-9.  I
disagree.  The EEOC's position is not embodied in any formal issuance from
the agency, such as a regulation, guideline, policy statement, or
administrative adjudication.  Instead, it is merely the EEOC's litigating
position in recent lawsuits.  Accordingly, it is entitled to little if any
deference.  See, e. g., Bowen v. Georgetown University Hospital, 488 U. S.
204, 212-213 (1988); St. Agnes Hospital v. Sullivan, 905 F. 2d 1563, 1568
(CADC 1990).  Although the dissent does cite to an EEOC decision involving
the policymaking exception in Title VII, see post, at 9, that decision did
not state, even in dicta, that the exception is limited to those who work
closely with elected officials.  Rather, it merely stated that the
exception applies to officials "on the highest levels of state or local
government."  CCH EEOC Decisions (1983) MDRV 6725.  In any event, the
EEOC's position is, for the reasons discussed above, inconsistent with the
plain language of the statute at issue.  "[N]o deference is due to agency
interpretations at odds with the plain language of the statute itself."
Ohio Public Employees Retirement System v. Betts, 492 U. S. 158, 171
(1989).





Subject: 90-50 -- DISSENT, GREGORY v. ASHCROFT

 


    SUPREME COURT OF THE UNITED STATES


No. 90-50



ELLIS GREGORY, Jr. and ANTHONY P. NUGENT, Jr., JUDGES, PETITIONERS v. JOHN
D. ASHCROFT, GOVERNOR OF MISSOURI

on writ of certiorari to the united states court of appeals for the eighth
circuit

[June 20, 1991]



    Justice Blackmun, with whom Justice Marshall joins, dissenting.
    I agree entirely with the cogent analysis contained in Part I of
Justice White's opinion, ante.  For the reasons well stated by Justice
White, the question we must resolve is whether appointed Missouri state
judges are excluded from the general prohibition of mandatory retirement
that Congress established in the Federal Age Discrimination in Employment
Act (ADEA), 29 U. S. C. 15 621-634.  I part company with Justice White,
however, in his determination that appointed state judges fall within the
narrow exclusion from ADEA coverage that Congress created for an "appointee
on the policymaking level."  29 U. S. C. MDRV 630(f).

I
    For two reasons, I do not accept the notion that an appointed state
judge is an "appointee on the policymaking level."  First, even assuming
that judges may be described as policymakers in certain circumstances, the
structure and legislative history of the policymaker exclusion make clear
that judges are not the kind of policymakers whom Congress intended to
exclude from the ADEA's broad reach.  Second, whether or not a plausible
argument may be made for judges' being policymakers, I would defer to the
EEOC's reasonable construction of the ADEA as covering appointed state
judges.

A
    Although it may be possible to define an appointed judge as a
"policymaker" with only a dictionary as a guide, {1} we have an obligation
to construe the exclusion of an "appointee on the policymaking level" with
a sensitivity to the context in which Congress placed it.  In construing an
undefined statutory term, this Court has adhered steadfastly to the rule
that " ` " `words grouped in a list should be given related meaning,' " ' "
Dole v. Steelworkers, --- U. S. ---, --- (1990), quoting Massachusetts v.
Morash, 490 U. S. 107, 114-115 (1989), quoting Schreiber v. Burlington
Northern, Inc., 472 U. S. 1, 8 (1985), quoting Securities Industry Assn. v.
Board of Governors, FRS, 468 U. S. 207, 218 (1984), and that " `in
expounding a statute, we [are] not . . . guided by a single sentence or
member of a sentence, but look to the provisions of the whole law, and to
its object and policy.' "  Morash, 490 U. S., at 115, quoting Pilot Life
Insurance Co. v. Dedeaux, 481 U. S. 41, 51 (1987).  Applying these maxims
of statutory construction, I conclude that an appointed state judge is not
the kind of "policymaker" whom Congress intended to exclude from the
protection of the ADEA.
    The policymaker exclusion is placed between the exclusion of "any
person chosen by such [elected] officer to be on such officer's personal
staff" and the exclusion of "an immediate advisor with respect to the
exercise of the constitutional or legal powers of the office."  See 29 U.
S. C. MDRV 630(f).  Reading the policymaker exclusion in light of the other
categories of employees listed with it, I conclude that the class of
"appointee[s] on the policymaking level" should be limited to those
officials who share the characteristics of personal staff members and
immediate advisers, i. e., those who work closely with the appointing
official and are directly accountable to that official.  Additionally, I
agree with the reasoning of the Second Circuit in EEOC v. Vermont, 904 F.
2d 794 (1990):

"Had Congress intended to except a wide-ranging category of policymaking
individuals operating wholly independently of the elected official, it
would probably have placed that expansive category at the end of the
series, not in the middle."  Id., at 798.


Because appointed judges are not accountable to the official who appoints
them and are precluded from working closely with that official once they
have been appointed, they are not "appointee[s] on the policymaking level"
for purposes of 29 U. S. C. MDRV 630(f). {2}

B
    The evidence of Congress' intent in enacting the policymaking exclusion
supports this narrow reading.  As noted by Justice White, ante, at 12,
there is little in the legis lative history of MDRV 630(f) itself to aid
our interpretive endeavor.  Because Title VII of the Civil Rights Act of
1964, MDRV 701(f), as amended, 42 U. S. C. MDRV 2000e(b), contains language
identical to that in the ADEA's policymaking exclusion, however, we accord
substantial weight to the legislative history of the cognate Title VII
provision in construing MDRV 630(f).  See Lorillard v. Pons, 434 U. S. 575,
584 (1978) (noting that "the prohibitions of the ADEA were derived in haec
verba from Title VII").  See also Trans World Airlines, Inc. v. Thurston,
469 U. S. 111, 121 (1985); Oscar Mayer & Co. v. Evans, 441 U. S. 750, 756
(1979); EEOC v. Vermont, 904 F. 2d, at 798.
    When Congress decided to amend Title VII to include States and local
governments as employers, the original bill did not contain any employee
exclusion.  As Justice White notes, ante, at 12, the absence of a provision
excluding certain state employees was a matter of concern for Senator
Ervin, who commented that the bill, as reported, did not contain a
provision "to the effect that the EEOC will not have jurisdiction over . .
. State judges, whether they are elected or appointed to office . . . ."
118 Cong. Rec. 1677 (1972).  Because this floor comment refers to appointed
judges, Justice White concludes that the later amendment containing the
exclusion of "an appointee on the policymaking level" was drafted in
"response to the concerns raised by Senator Ervin and others," ante, at 12,
and therefore should be read to include judges.
    Even if the only legislative history available was the above-quoted
statement of Senator Ervin and the final amendment containing the
policymaking exclusion, I would be reluctant to accept Justice White's
analysis.  It would be odd to conclude that the general exclusion of those
"on the policymaking level" was added in response to Senator Ervin's very
specific concern about appointed judges.  Surely, if Congress had desired
to exclude judges -- and was responding to a specific complaint that judges
would be within the jurisdiction of the EEOC -- it would have chosen far
clearer language to accomplish this end. {3}  In any case, a more detailed
look at the genesis of the policymaking exclusion seriously undermines the
suggestion that it was intended to include appointed judges.
    After commenting on the absence of an employee exclusion, Senator Ervin
proposed the following amendment:

"[T]he term `employee' as set forth in the original act of 1964 and as
modified in the pending bill shall not include any person elected to public
office in any State or political subdivision of any State by the qualified
voters thereof, or any person chosen by such person to advise him in
respect to the exercise of the constitutional or legal powers of his
office."  118 Cong. Rec. 4483 (1972).


Noticeably absent from this proposed amendment is any reference to those on
the policymaking level or to judges.  Senator Williams then suggested
expanding the proposed amendment to include the personal staff of the
elected in dividual, leading Senators Williams and Ervin to engage in the
following discussion about the purpose of the amendment:

"Mr. WILLIAMS: . . . .
"First, State and local governments are now included under the bill as
employers.  The amendment would provide, for the purposes of the bill and
for the basic law, that an elected individual is not an employee and,
th[e]refore, the law could not cover him.  The next point is that the
elected official would, in his position as an employer, not be covered and
would be exempt in the employment of certain individuals.

    . . . . .



". . . [B]asically the purpose of the amendment . . . [is] to exempt from
coverage those who are chosen by the Governor or the mayor or the county
supervisor, whatever the elected official is, and who are in a close
personal relationship and an immediate relationship with him.  Those who
are his first line of advisers.  Is that basically the purpose of the
Senator's amendment?
"Mr. ERVIN: I would say to my good friend from New Jersey that that is the
purpose of the amendment."  Id., at 4492-4493.


    Following this exchange, Senator Ervin's amendment was expanded to
exclude "any person chosen by such officer to be a personal assistant."
Id., at 4493.  The Senate adopted these amendments, voting to exclude both
personal staff members and immediate advisers from the scope of Title VII.
    The policymaker exclusion appears to have arisen from Senator Javits'
concern that the exclusion for advisers would sweep too broadly, including
hundreds of functionaries such as "lawyers, . . . stenographers, subpena
servers, researchers, and so forth."  Id., at 4097.  Senator Javits asked
"to have overnight to check into what would be the status of that rather
large group of employees," noting that he "realize[d] that . . . Senator
[Ervin was] . . . seeking to confine it to the higher officials in a
policymaking or policy advising capacity."  Ibid.  In an effort to clarify
his point, Senator Javits later stated:

    "The other thing, the immediate advisers, I was thinking more in terms
of a cabinet, of a Governor who would call his commissioners a cabinet, or
he may have a cabinet composed of three or four executive officials, or
five or six, who would do the main and important things.  That is what I
would define these things expressly to mean."  Id., at 4493.


    Although Senator Ervin assured Senator Javits that the exclusion of
personal staff and advisers affected only the classes of employees that
Senator Javits had mentioned, ibid., the Conference Committee eventually
adopted a specific exclusion of an "appointee on the policymaking level" as
well as the exclusion of personal staff and immediate advisers contained in
the Senate bill.  In explaining the scope of the exclusion, the conferees
stated:

    "It is the intention of the conferees to exempt elected officials and
members of their personal staffs, and persons appointed by such officials
as advisors or to policymaking positions at the highest levels of the
departments or agencies of State or local governments, such as cabinet
officers, and persons with comparable responsibili ties at the local level.
It is the conferees['] intent that this exemption shall be construed
narrowly."  S. Conf. Rep. No. 92-681, pp. 15-16 (1972).


    The foregoing history decisively refutes the argument that the
policymaker exclusion was added in response to Senator Ervin's concern that
appointed state judges would be protected by Title VII.  Senator Ervin's
own proposed amendment did not exclude those on the policymaking level.
Indeed, Senator Ervin indicated that all of the policymakers he sought to
have excluded from the coverage of Title VII were encompassed in the
exclusion of personal staff and immediate advisers.  It is obvious that
judges are neither staff nor immediate advisers of any elected official.
The only indication as to whom Congress understood to be "appointee[s] on
the policymaking level" is Senator Javits' reference to members of the
Governor's cabinet, echoed in the Conference Committee's use of "cabinet
officers" as an example of the type of appointee at the policymaking level
excluded from Title VII's definition of "employee."  When combined with the
Conference Committee's exhortation that the exclusion be construed
narrowly, this evidence indicates that Congress did not intend appointed
state judges to be excluded from the reach of Title VII or the ADEA.

C
    This Court has held that when a statutory term is ambiguous or
undefined, a court construing the statute should defer to a reasonable
interpretation of that term proffered by the agency entrusted with
administering the statute.  See Chevron U. S. A. Inc. v. Natural Resources
Defense Council, Inc., 467 U. S. 837, 842-843 (1984).  Thus, even were I to
conclude that one might read the exclusion of an "appointee on the
policymaking level" to include state judges, our prece dent would compel me
to accept the EEOC's contrary reading of the exclusion if it were a
"permissible" interpretation of this ambiguous term.  Id., at 843.  This
Court has recognized that "it is axiomatic that the EEOC's interpretation
of Title VII, for which it has primary enforcement responsibility, need not
be the best one by grammatical or any other standards.  Rather, the EEOC's
interpretation of ambiguous language need only be reasonable to be entitled
to def erence."  EEOC v. Commercial Office Products Co., 486 U. S. 107, 115
(1988).  The EEOC's interpretation of ADEA provisions is entitled to the
same deference as its interpretation of analogous provisions in Title VII.
See Oscar Mayer & Co. v. Evans, 441 U. S. 750, 761 (1979), citing Griggs v.
Duke Power Co., 401 U. S. 424, 434 (1971).
    The EEOC consistently has taken the position that an appointed judge is
not an "appointee on the policymaking level" within the meaning of 29 U. S.
C. MDRV 630(f).  See EEOC v. Vermont, 904 F. 2d 794 (CA2 1990); EEOC v.
Massachusetts, 858 F. 2d 52 (CA1 1988); EEOC v. Illinois, 721 F. Supp. 156
(ND Ill. 1989).  Relying on the legislative history detailed above, the
EEOC has asserted that Congress intended the policymaker exclusion to
include only "an elected official's first line advisers."  EEOC v.
Massachusetts, 858 F. 2d, at 55.  See also CCH EEOC Decisions (1983) MDRV
6725 (discussing the meaning of the policymaker exclusion under Title VII,
and stating that policymakers "must work closely with elected officials and
their advisors in developing policies that will implement the overall goals
of the elected officials").  As is evident from the foregoing discussion, I
believe this to be a correct reading of the statute and its history.  At a
minimum, it is a "permissible" reading of the indisputably ambiguous term
"appointee on the policymaking level."  Accordingly, I would defer to the
EEOC's reasonable interpretation of this term. {4}

II
    The Missouri constitutional provision mandating the re tirement of a
judge who reaches the age of 70 violates the ADEA and is, therefore,
invalid. {5}  Congress enacted the ADEA with the express purpose "to
promote employment of older persons based on their ability rather than age;
to prohibit arbitrary age discrimination in employment; to help employers
and workers find ways of meeting problems arising from the impact of age on
employment."  29 U. S. C. MDRV 621.  Congress provided for only limited
exclusions from the coverage of the ADEA, and exhorted courts applying this
law to construe such exclusions narrowly.  The statute's structure and
legislative history reveal that Congress did not intend an appointed state
judge to be beyond the scope of the ADEA's protective reach.  Further, the
EEOC, which is charged with the enforcement of the ADEA, has determined
that an appointed state judge is covered by the ADEA.  This Court's
precedent dictates that we defer to the EEOC's permissible interpretation
of the ADEA.
    I dissent.

 
 
 
 
 


------------------------------------------------------------------------------
1
    Justice White finds the dictionary definition of "policymaker" broad
enough to include the Missouri judges involved in this case, because judges
resolve disputes by choosing " `from among alternatives' and elaborate
their choices in order `to guide and . . . determine present and future
decisions.' "  Ante, at 11.  See also Gregory v. Ashcroft, 898 F. 2d 598,
601 (CA8 1990), quoting EEOC v. Massachusetts, 858 F. 2d 52, 55 (CA1 1988).
I hesitate to classify judges as policymakers, even at this level of
abstraction.  Although some part of a judge's task may be to fill in the
interstices of legislative enactments, the primary task of a judicial
officer is to apply rules reflecting the policy choices made by, or on
behalf of, those elected to legislative and executive positions.  A judge
is first and foremost one who resolves disputes, and not one charged with
the duty to fashion broad policies establishing the rights and duties of
citizens.  That task is reserved primarily for legislators.  See EEOC v.
Vermont, 904 F. 2d 794, 800-801 (CA2 1990).
    Nor I am persuaded that judges should be considered policymakers
because they sometimes fashion court rules and are otherwise involved in
the administration of the state judiciary.  See In re Stout, 521 Pa. 571,
583-586, 559 A. 2d 489, 495-497 (1989).  These housekeeping tasks are at
most ancillary to a judge's primary function described above.

2
    I disagree with Justice White's suggestion that this reading of the
policymaking exclusion renders it superfluous.  Ante, at 11-12.  There
exist policymakers who work closely with an appointing official but who are
appropriately classified as neither members of his "personal staff" nor
"immediate adviser[s] with respect to the exercise of the constitutional or
legal powers of the office."  Among others, certain members of the
Governor's Cabinet and high level state agency officials well might be
covered by the policymaking exclusion, as I construe it.

3
    The majority acknowledges this anomaly by noting that " `appointee [on]
the policymaking level,' particularly in the context of the other
exceptions that surround it, is an odd way for Congress to exclude judges;
a plain statement that judges are not `employees' would seem the most
efficient phrasing."  Ante, at 13.  The majority dismisses this objection
not by refuting it, but by noting that "we are not looking for a plain
statement that judges are excluded."  Ibid.  For the reasons noted in part
I of Justice White's opinion, this reasoning is faulty; appointed judges
are covered unless they fall within the enumerated exclusions.

4
    Relying on Bowen v. Georgetown University Hospital, 488 U. S. 204
(1988), Justice White would conclude that the EEOC's view of the scope of
the policymaking exclusion is entitled to "little if any deference" because
it is "merely the EEOC's litigating position in recent lawsuits."  Ante, at
13.  This case is distinguishable from Bowen, however, in two important
respects.  First, unlike in Bowen, where the Court declined to defer "to
agency litigating positions that are wholly unsupported by regulations,
rulings, or administrative practice," 488 U. S., at 212, the EEOC here has
issued an administrative ruling construing Title VII's cognate policymaking
exclusion that is entirely consistent with the agency's subsequent
"litigation position" that appointed judges are not the kind of officials
on the policymaking level whom Congress intended to exclude from ADEA
coverage.  See CCH EEOC Decisions (1983) MDRV 6725.  Second, the Court in
Bowen emphasized that the agency had failed to offer "a reasoned and
consistent view of the scope of" the relevant statute and had proffered an
interpretation of the statute that was "contrary to the narrow view of that
provision advocated in past cases."  See 488 U. S., at 212-213.  In
contrast, however, the EEOC never has waivered from its view that the
policymaking exclusion does not apply to appointed judges.  Thus, this
simply is not a case in which a court is asked to defer to "nothing more
than an agency's convenient litigating position."  Id., at 213.  For all
the reasons that deference was inappropriate in Bowen, it is appropriate
here.

5
    Because I conclude that the challenged Missouri constitutional pro
vision violates the ADEA, I need not consider petitioners' alternative
argument that the mandatory retirement provision violates the Fourteenth
Amendment to the United States Constitution.  See Carnival Cruise Lines,
Inc. v. Shute, --- U. S. ---, --- (1991) (slip op. 4.).
