Prejudicial Appearances: The Logic of American Antidiscrimination Law

Abstract

It is a high honor for me to deliver a Lecture established in the memory of Justice William J. Brennan, Jr. I clerked for the Justice, and I have ever since cherished him as a Master. I speak now not of his legendary personal qualities, of his warmth, empathy, humor, and generosity, but of his professional virtues. The law was to Justice Brennan simultaneously an institution of great internal integrity and a powerful instrument of moral passion. These two perspectives are so often divorced, one from the other, that their union into a single coherent vision has been to me a continual source of profound inspiration. When I was asked by the Brennan Center to deliver this Lecture, I selected the topic of ordinances that prohibit discrimination on the basis of personal appearance. I had no particular thought of Justice Brennan's work in mind when I made this choice, for I had long been fascinated by the seemingly utopian aspirations of these regulations. As I worked my way through the subject, however, I found, much to my surprise, that at the end of the road I had once again come face to face with Justice Brennan's achievements. One of Brennan's most important and most controversial opinions is United Steelworkers of America v. Weber, in which he held in an opinion for a bare five Justices that Title VII did not prohibit affirmative action programs by private employers. Without Weber, we would live in a very different and less integrated nation than we do now, and yet Weber has always been vulnerable to intense attack for its use of legislative history and for its supposed betrayal of American antidiscrimination law. One way of understanding this Lecture is as an invitation to comprehend the nature of Justice Brennan's accomplishment in that case.