Order for Joint Stipulation

    * r.. -
In  The

=*>itprpmp C o u r t  o f  t i p  M n iip h  ^ t a t r s
October Term, 1987

.■ *• - '■
Brenda Patterson,

Petitioner,
V.

McLean Credit U nion,
Respondent.

- i •» •«.*■. , ' •. *! On Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE AND 
BRIEF OF THE AMERICAN BAR ASSOCIATION 

AS AMICUS CURIAE SUPPORTING PETITIONER

_ * -v  ‘ ., r ' Robert MacCrate * 
President
American Bar Association 

William H. Allen 
Mitchell F. Dolin

750 North Lake Shore Drive 
Chicago, Illinois 60611 
(312) 988-5000

Attorneys for the American Bar 
Association as Amiens Curiae

* Counsel of Record 

June 1988

W il s o n  - E ras  p n in t in g  C o . ,  In c . - 7 8 9 -0 0 9 6  - W a s h in g t o n , D. C. 20001



In The

ûj-irrmr &mtrt of tljp Muttrh l̂ tatra
October Term, 1S87

No. 87-107

Brenda Patterson,
Petitioner,

v.

McLean Credit U nion ,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE AND 
BRIEF OF THE AMERICAN BAR ASSOCIATION 
AS AMICUS CURIAE SUPPORTING PETITIONER

The American Bar Association hereby moves, pursuant 
to Rule 36.3, for leave to file the attached brief amicus 

•curiae in support of petitioner’s position that Runyon v. 
McCrary, 427 U.S. 160 (1976), not be overruled. While 
consent to file this brief has been obtained from peti­
tioner, counsel for respondent has declined to grant con­
sent. Correspondence reflecting the parties’ respective 
positions has been lodged with the Clerk.

The ABA is a voluntary national organization of law­
yers. Its more than 347,000 members come from every 
state and territory and represent a broad cross-section 
of the legal profession. The ABA’s interest in this case



flows from its opposition to racial discrimination and 
its concern that the abandonment of such an important 
and well-established Supreme Court precedent as Runyon 
would be harmful to the legal system.

For many years the ABA has taken a strong position 
opposing racial discrimination within its own organiza­
tion, within other institutions of the legal system, and 
in society at large.1 Effective legal remedies play a sig­
nificant role in eradicating racial discrimination. Section 
1981 of Title 42 of the United States Code is an im­
portant—and, in many instances, the exclusive or super­
ior—remedy for victims of private racial discrimination 
in the making and enforcement of contracts.

Moreover, the ABA is concerned for its lawyer 
members and their clients about the overruling by this 
Court of one of its considered decisions construing a con­
gressional enactment. The legal profession and the 
clients it serves share an important stake in the proper 
application of the doctrine of stare decisis.“ In advis­
ing clients and formulating litigation strategy, law­
yers assume that this Court’s interpretations of fed­
eral statutes are binding and, except in extraordinary 1 2

1 See American Bar Association, Policy and Procedures Handbook 
126 (1087) (describing August 19C5 resolution on ABA anti- 
discrimination policy); American Bar Association Report No. 22 
(February 1072) (resolution condemning discriminatory hiring 
practices within the legal profession) ; American Bar Association 
Report No. 124 (February 1080) (resolution supporting legislation 
prohibiting housing discrimination) ; American Bar Association Re­
port No. 120 (August 1084) (resolution declaring it inappropriate 
for judges to belong to discriminatory organizations) ; American 
Bar Association Report No. 120 (August 1080) (resolution opposing 
discrimination in judicial selection).

2 See generally 1 Kent, Commentaries on American Law *442 
(1826) ("It is by the notoriety of such rules [of binding precedent] 
thnt professional men can give safe advice to those who consult 
them . . . .”) ; see also 1 llart & Sacks, The Legal Process 587 
(tent. ed. 1958).

circumstances, enduring. When this Court suddenly 
abandons its statutory precedents, legitimate expectations 
based on legal advice are disturbed and public trust in 
the profession and our legal system is shaken. The ABA 
has an interest in the .Court not overruling statutory 
precedents absent the most compelling reasons, none of 
which is present in this case.

As the largest membership organization of lawyers in 
this country, the ABA brings to this case a perspective 
that is broader than and different from that of petitioner. 
The ABA believes that the attached brief conveys that 
perspective in a manner that would be of assistance to 
this Court. Accordingly, the ABA respectfully seeks the 
Court’s leave to file the attached brief supporting 
petitioner.

Respectfully submitted,

Robert MacCrate 
President
American Bar Association 

William H. Allen 
Mitchell F. Dolin 

750 North Lake Shore Drive 
Chicago, Illinois 60611 
(312) 988-5000

Attorneys for the American Bar 
Association as Amicus Curiae

June 1988



QUESTION PRESENTED

This brief for the American Bar Association as amicus 
curiae deals only with the question that the Court in its 
order of April 25, 1988, asked the parties to address on 
reargument: Whether the interpretation of 42 U.S.C. 
§ 1981 adopted by this Court in Runyon v. McCrary, 427 
U.S. 160 (1976), should be reconsidered.

(i)



TABLE OF CONTENTS
Page

INTEREST OF AMICUS CURIAE................................. 1

SUMMARY OF ARGUMENT..........................................  1

ARGUMENT ........................................................................ 2
•

I. RUNYON  CONFIRMED A PRINCIPLE OF
RACIAL JUSTICE ALREADY WELL ESTAB­
LISHED AND PLACED IT BEYOND QUES­
TION .........................................................................  2

II. THE VALUES UNDERLYING THE DOC­
TRINE OF STARE DECISIS STRONGLY 
MILITATE AGAINST RECONSIDERATION

* OF RU N YO N ...........................................................  5

CONCLUSION .........................................................................  12



TABLE OF AUTHORITIES
Cases Pag0

Akron v. Akron Center for Reproductive Health,
462 U.S. 416 (1982).................................................  6

Arizona V. Rumsey, 467 U.S. 203 (1984)................. 7, 8
Brady V. Bristol-Meyers, Inc., 459 F.2d 621 (8th

Cir. 1972)..................................................................  4
Brown v. Allen, 344 U.S. 443 (1953)........................  7
Brown V. Board of Education, 347 U.S. 483

(1954) .......................................................................  8,9
Brown V. Gaston County Dyeing Machine Co.,

457 F.2d 1377 (4th Cir.), cert, denied, 409 U.S.
982 (1972) ...............................................................  4

Busic v. United States, 446 U.S. 398 (1980).......  8
Copperweld Corp. v. Independence Tube Corp.,

467 U.S. 752 (1984).................................................  10
Dobbins V. Local 212, 292 F. Supp. 412 (S.D. Ohio

1968) .......................................................................... 4
Flood v. Kuhn, 407 U.S. 258 (1972)......................... 9
Garcia V. San Antonio Transit Authority, 469 U.S.

528 (1985) ...............................................................  7,9
General Building Contractors Ass’n V. Pennsyl­

vania, 458 U.S. 375 (1982).....................................  5
Illinois Brick Co. V. Illinois, 431 U.S. 720 (1977).... 8
Johnson V. Railway Express Agency, 421 U.S. 454

(1975) .......................................................................  3
Jones V. Alfred II. Mayer Co., 392 U.S. 409

(1968)........................................................................  3> 4
Kentucky v. Dennison, 24 How. 66 (1861).................  9
Monell V. New York City Dept, of Social Services,

436 U.S. 658 (1978).................................................  8
Monroe V. Pape, 365 U.S. 167 (1961)......................  8, 9
Moragne v. States Marine Lines, 398 U.S. 375

(1970)......................................................................... 7
National League of Cities V. Usery, 426 U.S. 833

(1976) ........................................................................  9
NLRB  V. Longshoremen, 473 U.S. 61 (1985) 8
Oklahoma City V. Tuttle, 471 U.S. 808 (1985) 11
Patsy V. Board of Regents, 457 U.S. 496 (1982) .. 10
Plcssy V. Ferguson, 163 U.S. 537 (1896)..................  8

iv v

TABLE OF AUTHORITIES—Continued
Page

Pollock V. Farmers’ Loan & Trust Co., 157 U.S.
429 (1895)................................................................  7

Puerto Rico V. Brandsted, 107 S. Ct. 2802 (1987).. 9
Runyon V. McCrary, 427 U.S. 160 (1976) ............. passim
Saint Francis College V. Al-Khazraji, 107 S. Ct.

2022 (1987) ..............................................................  5
Sanders V. Dobbs Houses, Inc., 431 F.2d 1097 (5th 

Cir. 1970), cert, denied, 401 U.S. 948 (1971) .... 4
Shaare Tefila Congregation v. Cobb, 107 S. Ct. 2019

(1987)........................................................................  5
Square D Co. V. Niagara Frontier Tariff Bureau,

476 U.S. 409 (1986) ................................................  8
Stebbins V. Continental Ins. Cos., 442 F.2d 843

(D.C. Cir. 1971)...................................................... 4
Sw ift & Co. V. Wickham, 382 U.S. I l l  (1965).......  8
Thomas V. Washington Gas Light Co., 448 U.S.

261 (1980)................................................................  7
Tillman V. Wheaton-Haven Recreation Ass’n, 410

U.S. 431 (1973)............    3
United States V. Mason, 412 U.S. 391 (1973).......  11
Vasquez V. Hillery, 474 U.S. 254 (1986)................. 7
Waters V. Wisconsin Steel Works, 427 F.2d 476

(7th Cir.), cert, denied, 400 U.S. 911 (1970)_ 4
Welch V. Texas Dep’t of Highways and Public

Transportation, 107 S. Ct. 2941 (1987)..............  6
Young V. ITT, 438 F.2d 757 (3d Cir. 1971)............  4

Statutes and Legislative Material 
Civil Rights Act of 1866

42 U.S.C. § 1981.....................................................passim.
42 U.S.C. § 1982....................................................  3

118 Cong. Rec., Parts 3 & 4 (1972)............................. 4

Other Authorities
Cardozo, The Nature of the Judicial Process

(1921) ........................................................................ 7,9
The Federalist (Cooke ed. 1961)............................... 6
Harbaugh, Lawyer's Lawyer (ed. 1978)................  11



vi

Jackson, Decisional Law and Stare Decisis, 30
A.B.A.J. 334 (1944)...............................................  ?

Levi, An Introduction to Legal Reasoning, 15 U.
Chi. L. Rev. 501 (1948) ........................................  8

Lile, Some Views on the Role of Stare Decisis, 4 
Va. L. Rev. 95 (1916) ............................................  6

TABLE OF AUTHORITIES—Continued
Page

In The

§u|tn>mp (ftmtrt of tljr t̂at̂ o
October Term, 1987

No. 87-107

Brenda P atterson,
Petitioner,

v.

McLean Credit U nion ,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

BRIEF OF THE AMERICAN BAR ASSOCIATION 
AS AMICUS CURIAE SUPPORTING PETITIONER

This brief is submitted on behalf of the American Bar 
Association as amicus curiae in support of the petitioner.

INTEREST OF AMICUS CURIAE

The interest of the American Bar Association is set 
forth in the foregoing Motion for Leave to File.

SUMMARY OF ARGUMENT

For two decades, our Nation’s dedication to racial jus­
tice has been reflected in and served by the application 
of 42 U.S.C. § 1981 to prohibit private acts of discrimi­
nation in the making and enforcement of contracts. The 
three branches of the federal government, the legal pro­
fession, and those who are directly affected have oper-



2

ited on this understanding of the statute and ordered 
heir affairs accordingly. The Court’s decision in Run- 
ion V. McCrary, 427 U.S. 160 (1976), rendered in the 
ase of black children denied admission to private schools 
m account of their race, simply confirmed the settled 
act that Section 1981 reaches private conduct. The is- 
;ue was correctly resolved then. I t  should not be re- 
>pened now.

Independent of the fact that Runyon correctly con­
strued Section 1981, the doctrine of stare decisis strongly 
militates against a retreat from that decision. The rule 
•onfirmed in Runyon derived direct support from earlier 
decisions of this Court, embraced a construction of Sec­
tion 1981 already unanimously adopted by the lower 
courts, and occurred subsequent to congressional action 
ndorsing the Court’s interpretation. At the time Run- 
ion was decided, the Court heard the relevant legal and 
factual arguments on both sides of the question, includ­
ing a dissenting view cogently expressed by Justice 
White. And events since 1976 do not justify abandon­
ment of this precedent, which has been widely relied upon 
and which advances important anti-discrimination poli­
cies that have gained ever more widespread acceptance 
in our society.

ARGUMENT I.

I. RUNYON  CONFIRMED A PRINCIPLE OF RACIAL 
JUSTICE ALREADY WELL ESTABLISHED AND 
PLACED IT BEYOND QUESTION.

Section 1981 guarantees to “ [a] 11 persons . . . the 
same right . . .  to make and enforce contracts . . .  as 
is enjoyed by white citizens.” By its terms, the statute 
ondemns racial discrimination without regard to whether 

the person guilty of such discrimination is a government 
official or a private citizen. I t has been uniformly con­
strued for the past twenty years to be thus universal 
in its condemnation of racial discrimination. In the

3

process, Section 1981 has become a vital, everyday part 
of civil rights jurisprudence and practice, consistently 
understood as reaching all forms of racism in the making 
and enforcement of contracts.

Section 1981 provides an effective and important rem­
edy for acts of racial discrimination, both in instances 
where no other remedy is available and in others where 
the remedies available are either inadequate to provide re­
dress or insufficient to serve as reliable deterrents. No other 
federal statute addresses private school discrimination, 
the very m atter before the Court in Runyon. Numerous 
types of private discrimination—by dubs, small em­
ployers, and others—are covered on the federal level 
only by Section 1981. Even where there is some overlap 
between Section 1981 and other remedies, the Section 
1981 remedy is decidedly superior in various respects. 
See pages 10-11, below.

This Court’s holding in Runyon, which itself rested on 
precedent, decisively vindicated the enacting Congress’ 
commitment to racial justice and was thought once and for 
all to have removed any lingering doubt that Section 1981 
prohibits private acts of discrimination. Indeed, the 
Court opened its discussion of the law in Runyon with 
the observation that “ [i] t is now well established that 
. . .  § 1981 prohibits racial discrimination in the mak­
ing and enforcement of private contracts.” 427 U.S. at 
168. The Court cited for this proposition Johnson v. 
Railway Express Agency, 421 U.S. 454, 459-60 (1975), 
and Tillman v. Wheaton-Haven Recreation Ass’n, 410 
U.S. 431, 439-40 (1973), which dealt with Section 1981, 
and Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441 
n.78 (1968), the foundation case, which dealt with the 
companion provision, 42 U.S.C. § 1982, but clearly stated 
that Section 1981 as well as Section 1982 reached private 
conduct.

Runyon thus confirmed an interpretation of Section 
1981 that had already received the Court’s imprimatur 
and had been applied for several years in the federal



4

courts.1 Well before 1976, the Executive also affirma­
tively recognized that this construction of the law was both 
correct and well established.1 2 * * * * * Indeed, in its amicus curiae 
brief in the Runyon case, the United States said that 
“ it is now settled that Section 1981 prohibits all racial 
discrimination, private as well as public, interfering 
with the making and enforcement of contracts.” Brief 
for the United States as Amicus Curiae at 13, Runyon 
v. McCrary.

More important, Congress, whose enactment this Court 
interpreted in Runyon and in the “line of authority” 8 
that preceded it, was aware at least as early as 1972 
that Section 1981 was being applied to private-sector dis­
crimination in employment and other areas. When legis­
lation was introduced in the Senate to vitiate this appli­
cation through a partial repeal of Section 1981, it was 
twice rejected. 118 Cong. Rec. 3372-73, 3965 (Feb. 9 & 
15, 1972). Congressional endorsement of this Court’s 
understanding of Section 1981 and active congressional

1 The district courts interpreted Section 1981 as covering private 
conduct as early as 1968 and were swiftly followed by an unbroken 
line of appellate rulings reaching the same result. See Dobbins v. 
Local 212, 292 F. Supp. 413, 442 (S.D. Ohio 1968); Waters v. 
Wisconsin Steel Works, 427 F.2d 476, 482-83 (7th Cir.), cert, denied, 
400 U.S. 911 (1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097, 
1099 (6th Cir. 1970), cert, denied, 401 U.S. 948 (1971); Young v. 
ITT, 438 F.2d 757, 759-60 (3d Cir. 1971); Brown v. Gaston County 
Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert, denied, 409 
U.S. 982 (1972); Brady v. Bristol-Meyers, Inc., 459 F.2d 621, 623 
(8th Cir. 1972).

2 See Stebbins v. Continental Ins. Cos., 442 F.2d 843, 846-47
(D.C. Cir. 1971) ("The [Equal Employment Opportunity] Com­
mission argues that [Section 1981] creates a cause of action for 
racial discrimination in private employment . . . .”); cf. Brief for
the United States ns Amicus Curiae at 8-9, Jones v. Alfred H.
Mayer Co. (“Nor do we believe there is any textual, historical, or
constitutional obstacle to applying [Section 1982] . . .  to wholly
private action.”).

» 427 U.S. at 189 (Stevens, J., concurring).

5

commitment to its judicial application underscore the ex­
tent to which the principle of Runyon was settled and 
accepted even before its confirmation by that decision.

In the dozen years since this Court’s ruling in Runyon, 
the express inclusion of discriminatory private conduct 
within the prohibition of Section 1981 has been placed be­
yond the realm of debate. This is vividly illustrated by 
the decision of the Court during the 1986 Term in Saint 
Francis College v. Al-Khazraji, 107 S. Ct. 2022 (1987). 
The Court did not question whether Section 1981 reached 
private conduct but whether discrimination in pri­
vate employment against an Arab was racial discrimina­
tion within the meaning of Section 1981. The Court 
unanimously held that it was, 107 S. Ct. at 2028, and 
at the same time held that discrimination against Jews 
was racial discrimination within the meaning of Section 
1982, Shaare Tejila. Congregation V. Cobb, 107 S. Ct. 
2019, 2022 (1987). Similarly, the inclusion of private 
conduct in Section 1981 was the agreed premise in Gen­
eral Building Contractors Ass’n v. Pennsylvania, 458 
U.S. 375 (1982),"' where the dissenting members of this 
Court would have extended the statute still farther by 
holding a private actor liable for unintended discrimina­
tion.

Decisions such as these have fortified the fact that Sec­
tion 1981 prohibits private discriminatory conduct. The 
lower courts and the legal profession have faithfully fol­
lowed this Court’s clear mandate. The issue has long been 
settled. It should not be unsettled at this late date.

II. THE VALUES UNDERLYING THE DOCTRINE OF 
STARE DECISIS STRONGLY MILITATE AGAINST 
RECONSIDERATION OF RUNYON.

The fact that Section 1981 prohibits private acts of 
discrimination in the making and enforcement of con­
tracts has been placed beyond dispute during the past

* See especially id. at 388.



6

twenty years. This correct understanding has been em­
braced or accepted by the three branches of the federal 
government, the legal profession, and both the victims of 
and participants in discriminatory practices. The ex­
pectations and reliance generated during this period 
alone w arrant adherence to the holding in Runyon v. 
McCrary. To the extent that major changes in law and 
society have occurred since Runyon, they have only con­
solidated the policy advanced in Runyon condemning all 
forms of racial discrimination. No legal or social develop­
ment of the past several years could conceivably justify a 
retreat from Runyon.

Stare decisis is, independent of any other consideration, 
a compelling reason for not overruling Runyon. Stare 
decisis, as this Court has observed, “is a doctrine that 
demands respect in a society governed by the rule of law.” 
Akron v. Akron Center for Reproductive Health, 4G2 U.S. 
416, 420 (1982). Indeed, it has been said that “ [t]he 
rule of law depends in large part on adherence to the doc­
trine of stare decisis.” Welch v. Texas Dep’t of High­
ways and Public Transportation, 107 S. Ct. 2941, 2948 
(1987) (plurality opinion). Stare decisis protects the 
integrity of the legal system by guaranteeing continuity 
and predictability in the administration of justice. Be­
cause ours is a country dedicated to the rule of law, the 
doctrine of stare decisis is “a natural evolution from the 
very nature of our institutions.” Lile, Some Views on the 
Role of Stare Decisis, 4 Va. L. Rev. 95, 97 (1916).

Stare decisis, like fealty to constitutional and statu­
tory text, is an essential safeguard against the unprin­
cipled exercise of judicial authority. As Hamilton wrote 
in the Federalist, “ [t]o avoid an arbitrary discretion 
in the Courts, it is indispensable that they should be bound 
down by strict rules and precedents.” The Federalist No. 
78, a t 529-30 (Cooke ed. 1961). The point was reiterated 
by the first Justice White in a dissent ultimately vindi­

7

cated by the adoption of the Sixteenth Amendment. 
He said that “ Ttlhe fundamental conception of a ju­
dicial body is that of one hedged about by precedents 
which are binding on the court without regard to the per­
sonality of its members.” Pollock v. Farmers’ Loan & 
Trust Co., 157 U.S. 429, 652 (1895) (dissenting opinion).

The doctrine of stare decisis thus “permits society to 
presume that bedrock principles are founded in law 
rather than in the proclivities of individuals.” Vasquez v. 
Hillery, 474 U.S. 254, 265 (1986).° Of course, precedent 
is not a straitjacket. But, as Justice Robert Jackson 
cautioned, there must be limits on the role judges play 
in changing the law of a democratic society. “Modera­
tion in change is all that makes judicial participation in 
the evolution of law tolerable.” Jackson, Decisional Law 
and. Stare Decisis, 30 A.B.A.J. 334, 334 (1944).

Respect for precedent establishes the Court as the 
guardian of the laws, while disrespect for precedent 
undermines regard for the Court itself. In his charac­
teristically understated way, Justice Powell put it best: 
“The stability of judicial decision, and with it respect for 
the authority of this Court, are not served by the pre­
cipitate overruling of . . . precedents.” Garcia v. San 
Antonio Transit Authority, 469 U.S. 528, 559 (1985) 
(dissenting opinion).

As a consequence of its centrality in our legal system, 
stare decisis imposes a “severe burden on the litigant 
who asks [the Court] to disavow one of [its] precedents.” 
Thomas v. Washington Gas Light Co., 448 U.S. 261, 272 
(1980). “ [A]ny departure from the doctrine of stare

® Accord Moragne v. States Marine Lines, 398 U.S. 375, 403 
(1970) (stressing: "the necessity of maintaining public faith in the 
judiciary as a source of impersonal and reasoned judgments”); 
Brown v. Allen, 344 U.S. 443, 635 (1953) (Jackson, J., concurring) 
(deference to precedent sustains confidence in judicial respect for 
"impersonal rules of law”); Cardozo, The Nature of the Judicial 
Process 112 (1921) (adherence to precedent ensures impartiality).



1

decisis demands special justification.” Arizona v. Rum- 
sey, 467 U.S. 203, 212 (1984) ; Swift & Co. V. Wickham, 
382 U.S. I l l ,  116 (1965).

It is familiar learning that stare decisis is least com­
manding in constitutional cases because there is no easy 
alternative to overruling by which the Court’s constitu­
tional interpretations can be modified. Only the Court 
could correct the error of Plessy v. Ferguson, 163 U.S. 537 
(1896), and make the Fourteenth Amendment the instru­
ment of racial justice it was intended to be, as it did in 
Broion v. Board of Education, 347 U.S. 483 (1954). Con­
gress could not. By contrast, the force of stare decisis is 
greatest in cases involving statutory construction because 
the lawmaking body is free to correct any error the Court 
may have made.8

Stare decisis in the construction of statutes demands 
special respect where, as here, Congress has embraced the 
Court’s original holding. Justice Harlan’s explanation of 
his concurrence in Monroe v. Pape, 365 U.S. 167 (1961), 
has become a standard formulation of the heavy burden 
borne by one asking the Court to overrule a precedent Con­
gress has approved.1 He spoke of both “the policy of stare 
decisis, as it should be applied in matters of statutory 
construction,” and, “to a lesser extent, the indications of 
congressional acceptance of this Court’s earlier interpre­
tation.” 365 U.S. at 192. He said that the two together 
“require[d] that it appear beyondl doubt” that the chal­
lenged precedents “misapprehended” the meaning of the

• See Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 
409, 429 n.34 (1986) (citing NLRB v. Longshoremen, 473 U.S. 61, 
84 (1985), and Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 
(1977)); Levi, An Introduction to Legal Reasoning, 15 U. Chi. L. 
Rev. 501, 540 (1948) ; cf. Busic v. United States, 446 U.S. 398, 417- 
18 (1980) (Rehnquist, J., dissenting) ("Were [the issue] demon­
strably a case of statutory construction, I could acquiesce to the 
Court’s reading . . .  in the interest of stare decisis.").

7 See Moncll v. New York City Dept, of Social Services, 436 U.S. 
658,715 (1978) (Rehnquist, J., dissenting).

8 9

statute in issue “before a departure from what was 
decided in those cases would be justified.” Id. (emphasis 
added). The "indications of congressional acceptance” 
are as unmistakable in this case as are the demands, 
apart from congressional ratification, of “the policy of 
star# decisis." Congress, as this Court will be told in 
other briefs, ratified Runyon through subsequent legisla­
tion that built on an understanding that Section 1981 
meant what Runyon said it meant and through explicit 
rejection of proposed legislation that would have con­
tracted the reach of Section 1981. Particularly in these 
circumstances, it would be appropriate to leave any modi­
fication to Congress.8

To be sure, as the listing of cases in the Court’s per 
curiam opinion setting the case for reargument illustrates, 
the Court has on occasion overruled its statutory prec­
edents. In the Court’s overruling decisions, many 
made according to the less demanding standards for con­
stitutional cases, the extraordinary circumstances that 
might justify the abandonment of precedent are identi­
fied. Precedent may be disregarded when the rule of 
a case has proven unexpectedly difficult to apply;® when 
changed legal circumstances have created an internal 
inconsistency between an important and ongoing legal 
policy and an earlier, discredited legal regim e;10 when 
changed mores have rendered the earlier decision incom­
patible with social progress;11 or when new and unantic­
ipated considerations have emerged since the time of the

»See Flood v. Kuhn, 407 U.S. 258, 284 (1972) (“If there is any 
inconsistency or illogic in all this, it is an inconsistency and illoRic 
of long standing that is to be remedied by the Congress and not 
by this Court.. . . ”).

• See Garcia v. San Antonio Metropolitan Transit Authority, 469 
U.S. 528, 539-547 (1985), overruling Natiorai League of Cities v. 
Usery, 426 U.S. 833 (1976).

to gee Puerto Rico v. Brandsted, 107 S. Ct. 2802, 2809 (1987), 
overruling Kentucky v. Dennison, 24 How. 66 (1861).

it See Cardozo, The Nature of the Judicial Process 151-52 (1921); 
see, e.g., Brown v. Board of Education, 347 U.S. 483 (1954).



initial decision, providing judges with unforeseen and 
unforeseeable information.13

Runyon v. McCrary exemplifies a decision entitled to 
stare decisis. The recognized exceptions to stare decisis 
simply do not apply. The rule of Runyon was being 
applied well before 1976 and it has been successfully 
applied and extended since then. Runijon itself embodies 
a policy of the highest order of importance, one that has 
engaged our lawmakers more perhaps than any other in 
recent years, the policy of extirpating racial discrimi­
nation. Changes in mores since Runyon have been in 
exactly the anti-discrimination direction signaled by the 
Court’s decision.

Finally, no unanticipated evidence or results have 
emerged to alter the issues considered by the Court in 
deciding Runyon. The factors that argued for and 
against the Runyon interpretation of Section 1981 were 
fully aired and considered a t the time. The reasoned 
opinion in Runyon was correct and should not be subject 
to periodic revisitation.14

The reliance and expectations generated by this Court’s 
decisions in Runyon and its antecedents also present a 
compelling reason for leaving it undisturbed. Because the 
remedies provided by Section 1981 exceed in scope the 
remedies provided by other anti-discrimination laws, over­
ruling Runyon would work a forfeiture on many individ­
uals, including those who have relied upon their lawyers’ 
advice in situations where an alternative remedy or pro­
cedure was available. For example, a trial by jury  is. 
guaranteed in an action for damages under Section 1981; 
it is not available under Title VII of the Civil Rights 
Act of 1964. Section 1981 confers on plaintiffs the right

See Copperwcld Corp. v. Independence Tube Corp., 467 U.S. 
752, 766 (1984).

Cf. Patsy v. Board of Regents, 457 U.S. 496, 517 (1982) 
(White, J., concurring) ("Whether or not this initially was a wise 
choice, these decisions are stare decisis.’’).

11

to recover punitive damages; by contrast, Title VII 
limits monetary relief to back pay. The longer stat­
ute of limitations and more favorable remedial regime 
of Section 1981, together with fears of res judicata, make 
it virtually certain that numerous clients, on their law­
yers’ advice, will have forgone Title VII or state law 
claims because of what was represented to be the avail­
ability of a Section 1981 remedy. Their legitimate ex­
pectations would be thwarted were Runyon to be over­
ruled. This Court has emphasized that adherence to 
precedent is crucial when such reliance interests are at 
stake: “ [I ]f  the doctrine of stare decisis has any mean­
ing at all, it requires that people in their everyday affairs 
be able to rely on our decisions and not be needlessly 
penalized for such reliance.” United States v. Mason, 412 
U.S. 391, 399-400 (1973); see also Oklahoma City v. 
Tuttle, 471 U.S. 808, 818 n.5 (1985) (plurality opinion).14

The long-standing and well-considered principle of 
racial justice confirmed in Runyon strongly suggests that 
it should not be reconsidered. Any doubt in this regard, 
however, should vanish when one considers the pattern 
of congressional endorsement of the principle and the ex­
tent to which it has been relied upon. In light of the 
manifest inapplicability of the exceptions to stare decisis, 
Runyon should be left undisturbed.

m While stare decisis should not be blindly applied, its unjustified 
abandonment would impair lawyers’ ability to provide meaningful 
advice. In earthy language, John W. Davis once suggested that 
clients would substitute casting dice for consulting lawyers if their 
expectations were dashed by a practice of overruling precedents. 
Harbaugh, Lawyer’s Lawyer 416 (ed. 1978) (quoting 1942 letter to 
Hartford Courant).



12

CONCLUSION

Runyon v. McCrary was correctly decided. The Court 
should decline to reconsider it.

Respectfully submitted,

Robert MacCrate 
President
American Bar Association 

William H. Allen 
Mitchell F. Dolin

750 North Lake Shore Drive 
Chicago, Illinois 60611 
(312) 988-5000

Attorneys for the American Bar 
Association as Amicus Curiae

June 1988