Article V, § 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 or Act), 81 Stat. 602, as amended, 29 U. S. C. §§ 621-634, and whether it comports with the federal constitutional prescription of equal protection of the laws.
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 § 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, §§25(a)-25(g). 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, §25(c)(1).
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. 979 (1990), and now affirm.
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. §§ 623(a), 631(a). The term "employer" is defined to include "a State or political subdivision of a State." § 630(b)(2). Petitioners work for the State of Missouri. They contend that the Missouri
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 120 years ago, the Court described the constitutional scheme of dual sovereigns:
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:
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 serve 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
James Madison made much the same point:
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 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. Nebraska ex rel. 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:
This plain statement rule is nothing more than an acknowledgment 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:
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, § 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
These cases stand in recognition of the authority of the people of the States to determine the qualifications of their most important government officials.
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 political function exception is less exacting, but it is not absent.
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 § 6-25, p. 480 (2d ed. 1988).
In 1974, Congress extended the substantive provisions of the ADEA to include the States as employers. Pub. L. 93-259, § 28(a), 88 Stat. 74, 29 U. S. C. § 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:
Governor Ashcroft contends that the § 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 § 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 exercise of 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
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, §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, § 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. §§484.040, 484.200-484.270 (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
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 (1989) (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.
The extension of the ADEA to employment by state and local governments was a valid exercise of Congress' powers
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
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. § 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 § 6010 pursuant to § 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 § 6010, Congress acted pursuant to its spending power alone. Consequently, § 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 § 5 powers, we concluded that Congress did not do so. Ibid.
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 aged 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
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, § 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: "The 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
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 111-112; 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, §§ 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, § 19 (Supreme Court justices and Court of Appeals judges serve 12-year terms; Circuit Court judges 6 years), with Mo. Const., Art. IV, § 17 (Governor, Lieutenant Governor, secretary of state, state treasurer, and attorney general serve 4-year terms) and Mo. Const., Art. III, § 11 (state representatives serve 2-year terms; state senators 4 years). Most of these judges do not run in ordinary elections. See Mo. Const., Art. V, § 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.
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, 427 U. S., 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.
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
I agree with the majority that neither the Age Discrimination in Employment Act of 1967 (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.
In addition to petitioners' equal protection claim, we granted certiorari to decide the following question:
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 467 (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.
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, § 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, Inc. 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 & Elec. 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 Say. & 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 460, the majority nevertheless imposes
The majority also relies heavily on our cases addressing the constitutionality of state exclusion of aliens from public employment. See ante, at 461-463, 468-470. 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
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. Connelie, 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 coequal branch of the Federal Government. Finally, the majority does not explicitly restrict its rule to "functions that go to the heart of representative government," 413 U. S., at 647, and may in fact be extending it much further to all "state governmental functions." See ante, at 470.
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 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. § 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 467 (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.
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 § 5 of the Fourteenth Amendment. See ante, at 467-470. 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
The majority's failure to recognize the special status of legislation enacted pursuant to § 5 ignores that, unlike Congress' Commerce Clause power, "[w]hen Congress acts pursuant to § 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, supra, at 243, n. 18.
The majority relies upon Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), see ante, at 469-470, 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
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.
The statute at issue in this case is the ADEA's definition of "employee," which provides:
A parsing of that definition reveals that it excludes from the definition of "employee" (and thus the coverage of the ADEA) four types of (noncivil 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
"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 466, is an eloquent description of the policymaking nature of the judicial function. Justice Cardozo also stated it well:
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 § 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.
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:
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. § 630(f).
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, at 474-481. 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 of 1967 (ADEA), 29 U. S. C. §§ 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." § 630(f).
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,
Although it may be possible to define an appointed judge as a "policymaker" with only a dictionary as a guide,
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 adviser with respect to the exercise of the constitutional or legal powers of the office." See 29 U. S. C. § 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):
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. § 630(f).
The evidence of Congress' intent in enacting the policymaking exclusion supports this narrow reading. As noted by JUSTICE WHITE, ante, at 484, there is little in the legislative history of § 630(f) itself to aid our interpretive endeavor. Because Title VII of the Civil Rights Act of 1964, § 701(f), as amended, 42 U. S. C. § 2000e(f), 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 § 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 484, 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 484-485, 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
After commenting on the absence of an employee exclusion, Senator Ervin proposed the following amendment:
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 individual, leading Senators Williams and Ervin to engage in the following discussion about the purpose of the amendment:
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."
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:
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
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 precedent 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 deference." 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., at 761, citing Griggs v. Duke Power Co., 401 U.S. 424, 434 (1971).
The Missouri constitutional provision mandating the retirement of a judge who reaches the age of 70 violates the ADEA and is, therefore, invalid.
Briefs of amici curiae urging affirmance were filed for the State of Colorado et al. by Scott Harshbarger, Attorney General of Massachusetts, H. Reed Witherby, Special Assistant Attorney General, and Thomas A. Barnico, Assistant Attorney General, and by the Attorneys General for their respective jurisdictions as follows: Gale A. Norton of Colorado, Robert A. Butterworth of Florida, Warren Price III of Hawaii, Hubert H. Humphrey III of Minnesota, Donald Stenberg of Nebraska, Robert Del Tufo of New Jersey, Nicholas J. Spaeth of North Dakota, Ernest D. Preate, Jr., of Pennsylvania, Hector Rivera-Cruz of Puerto Rico, James E. O'Neil of Rhode Island, T. Travis Medlock of South Carolina, and Joseph B. Meyer of Wyoming; for the State of Connecticut by Richard Blumenthal, Attorney General, and Arnold B. Feigin and Daniel R. Schaefer, Assistant Attorneys General; for the State of Vermont, Office of Court Administrator, by William B. Gray; for the Missouri Bar by Karen M. Iverson and Timothy K. McNamara; for the National Governors Association et al. by Richard Ruda, Michael J. Wahoske, and Mark B. Rotenberg; and for the Washington Legal Foundation by John C. Cozad, W. Dennis Cross, R. Christopher Abele, Daniel J. Popeo, and John C. Scully.
Daniel G. Spraul filed a brief for Judge John W. Keefe as amicus curiae.
Nor am I 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.