Messer v. Meno

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In Messer v. Meno, 130 F.3d 130 (5th Cir. 1997), the U.S. Court of Appeals for the Fifth Circuit held in favor of a white woman who alleged employment discrimination against her because she is white. The Court reversed a grant of summary judgment for the employer, and remanded the case for further consideration by the trial court, because it found that the affirmative action program was not justified by any showing of past discrimination to correct.

Judge Edith Jones wrote the decision for the Court. In a concurrence that defended state experimentation with affirmative action, Judge Reynaldo Garza stated:

In recent years, the Supreme Court has been showing a stronger (and in my view, salutary) respect for states' rights. The Supreme Court, in decisions such as U.S. v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), 1 Printz v. U.S., U.S. , 117 S. Ct. 2365, 138 L. Ed. 2d 914 (1997), 2 City of Boerne v. Flores, U.S. , 117 S. Ct. 2157, 138 L. Ed. 2d 624 (1997), 3 and Washington v. Glucksberg, U.S. , 117 S. Ct. 2258, 138 L. Ed. 2d 772 (1997), 4 among others, 5 has shown an increasing willingness to limit the power of the federal government and allow states to set their own rules and regulations on various matters.
1 In Lopez, the Supreme Court struck down the federal Gun-Free School Zones Act, which forbade the possession of a handgun within a school zone, stating that passage of this law exceeded Congress' authority under the Commerce Clause, because the activity in question was not economic activity that substantially affected interstate commerce, and therefore, passage of this law was an unconstitutional overreach on the part of the Congress. [**33]
2 In Printz, the Supreme Court struck down a section in a federal handgun control law, the Brady Law, which required local law enforcement agencies to perform background checks on gun purchasers. The Supreme Court held this requirement imposed an unconstitutional obligation on state and local law enforcement authorities to execute federal laws.
3 In Boerne, the Supreme Court struck down the federal Religious Freedom Restoration Act of 1993, as exceeding Congress' enforcement powers under § 5 of the Fourteenth Amendment, and constituted an unconstitutional interference with state and local regulations regarding zoning, health and safety, and other police power matters.
4 In Glucksberg, the Supreme Court did not create a right to die, but also did not forbid states from passing laws regarding assisted suicide, thereby leaving the issue of the right to die up to the states, unlike the issue of the right to abortion. See Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973).
5 Admittedly, the cases cited do not deal with affirmative action, but they are useful in demonstrating the federalist trend in Supreme Court jurisprudence.
This development has coincided with the Supreme Court's limitations on affirmative action, as exemplified in Wygant, Croson, and Adarand. These two trends, while independent, can conflict with one another. If a state, through the acts of its legislature, chooses to create certain affirmative action policies, the extent to which the federal courts can interpret and scrutinize such policies is both expanded by the recent precedents limiting affirmative action and contracted by the recent precedents limiting the power of the federal government (including the federal courts) from intervening in matters of state governance.