Byron White

“ 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.↑ 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." ”

“ 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." ”

“ 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, 109 S.Ct., at 473-474. 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." ”

“ 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." ”

“ 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 responsibilities at the local level. It is the conferees ['] intent that this exemption shall be construed narrowly." S.Conf.Rep. No. ”

“ 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." ”

“ 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] . . . ”

“ For all the reasons that deference was inappropriate in Bowen, it is appropriate here.↑ Because I conclude that the challenged Missouri constitutional provision violates the ADEA, I need not consider petitioners' alternative argument that the mandatory retirement provision violates the Fourteenth Amendment to the United States Constitution. ”