Patterson v. McLean Credit Union Brief of Amici Curiae The Washington Legal Foundation et al.
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August 12, 1988

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Brief Collection, LDF Court Filings. Patterson v. McLean Credit Union Brief of Amici Curiae The Washington Legal Foundation et al., 1988. 66ac63b2-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/93f91760-c4ca-4ed7-8d11-4058a7a2921c/patterson-v-mclean-credit-union-brief-of-amici-curiae-the-washington-legal-foundation-et-al. Accessed June 17, 2025.
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No. 87-107 In T he (Cnurt nf tip? United ^tatps October Term , 1987 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 AMICI CURIAE THE WASHINGTON LEGAL FOUNDATION, CONGRESSMEN HENRY J. HYDE, JACK F. KEMP, NORMAN D. SHUMWAY, ROBERT S. WALKER, GEORGE C. WORTLEY, ROBERT E BADHAM, DONALD E. “BUZ” LUKENS, WILLIAM E. DANNEMEYER; SENATORS JESSE HELMS, GORDON J. HUMPHREY, STEVE SYMMS; THE LINCOLN INSTITUTE: FOR RESEARCH AND EDUCATION, AND THE ALLIED EDUCATIONAL FOUNDATION IN SUPPORT OF RESPONDENT Da n iel J . P opeo P aul D. Kamenab * W ashington Legal F oundation 1705 N Street, N.W. Washington, D.C. 20036 (202) 857-0240 Date: August 12,1988 * Counsel of Record W i l s o n - Ep e s P o i n t i n g C o . . In c . - 7 8 9 - 0 0 9 6 - W a s h i n g t o n . D . C . 2 0 0 0 1 TABLE OF CONTENTS Page TABLE OF AUTHORITIES................... v INTERESTS OF AMICI CURIAE j STATEMENT OF THE CASE............ j SUMMARY OF THE ARGUMENT j ARGUMENT ......................................................................... 2 I. CONGRESS INTENDED THAT SECTION 1981 ONLY REMOVE LEGAL DISABILITIES IMPOSED BY THE STATES AND SUCH READING OF THE LAW HAS HAD THE EFFECT OF REMEDYING BOTH PUBLIC AND PRIVATE DISCRIMINATION 2 A. The Language of Section 1981............ 3 B. The Legislative and Legal History of Section 1981...... _.................................................................. 7 1. The Schnrz Report ......... g 2. Congressional Debates in the 39th Con gress ....................................... 3. Judicial Enforcement ........... jg II. STARE DECISIS CONCERNS DO NOT COM PEL ADHERENCE TO RUNYON 20 A. Runyon Does Not Bring Stability to the Law .... ................................................................. 21 B. The Reliance Interests Are Not Compelling 24 C. Congress Has Not Affirmatively Adopted Runyon’s Interpretation of Section 1981 26 CONCLUSION .............................................................. 30 APPENDIX TABLE OF AUTHORITIES CASES Page Alyeska Pipeline Service Co. v. Wilderness So ciety. -121 U.S. 240 (1975) ................................... 28 Panics v. Browning (unreported) (1866)) ......... 18 Bhandari v. First National Bank of Commerce, 829 F.2d 184.1 (5th Cir. 1987).............................. 22 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1312) ........ 20 Central Machinery Co. v. Arizona State Tax Comm.’n, 448 U.S. 160 (1980) .................... 2 Civil Bights Cases, 109 U.S. 3 (1883) .................. 13,20 Cleveland v. U.S., 192 U.S. 14 (1946)................. . 27 Died Scott v. Sanford, 112 How. 392 (1856)....... 16,17 Gay Bights Coalition of Georgetown University Ban, Center v. Georgetown University, 536 A.2d 1 (D C. Cl. App. 1987) ...... ..................... ......... 25 General Electric Co. v. Gilbert, 429 U.S. 125 n !,7'D 30 Grove City College v. Bell. 465 U.S. 555 (1984).... 29,30 Immigration <C- Naturalization Service v. Chadha, 162 U.S. 919 (1981) ............................................... 25 In re Turner. 21 Fed. Can. 337, 1 Abb. 84 (1867).. 18 Johnson v. Bailway Express Agency, Inc., 421 U.S. 159 (1975) ............................... '..................... 4f 27 Johnson v. Transportation Agency of Santa Clara County, 107 S. Ct. 1442 (1987).............. 24,26 Jones v. Alfred H. Mayer Co., 392 U.S. 409 ............................ 8,15,21,22,25 McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 27.1 (1976)............................................... 7f 23 M oh a sco Carp. v. Silver, 447 U.S. 807 (1980).... 3,7 NAACP v. Claiborne Hardware Company, 458 U.S. 836 (1932)................... ' 2.3 Patterson v. McLean Credit Union, 108 S. Ct. 1419 .................................................................... 5,21 Runyon v. McCrary, 427 U.S. 160 (1976)............. passim Shaare Tefila Congregation v. Cobb, 107 S Ct 2019 (1987) ..................................................... 23 Shapiro v. United States, 335 U.S. 1 (1948) 26 TABLE OF AUTHORITIES—Continued Page Smith v. Moody, 26 Ind. 299 (1866)....................... 18 Steinberg v. Chicago Medical School, 69 I11.2d 320, 371 N.E.2d 634 (1977) ....................................... 6 The Westchester and Philadelphia Railroad Com pany v. Myers, 55 Pa. 209 (1867) ...................... 19 CONSTITUTIONAL PROVISIONS U.S. Const. Art. I, sec. 1 ........................................... 29 U.S. Const. Amend. I ............................................... 23 U.S. Const. Amend. X III...................................... l, 8( 9,17 U.S. Const. Amend. XIV.....................................8, 9,13 STATUTES 42 U.S.C. § 1982 (1982)........................................... passim 42 U.S.C. § 1982 (1982) ................................... 23 42 U.S.C. § 1983 (1982) ............................. 28 42 U.S.C. § 1985 (1982) ................................ (5 42 U.S.C. § 1988 (1982) .............................. 28 42 U.S.C. § 1986 (1982).............................. 28 42 U.S.C. § 1994 (1982) .......................................... . 12 Anti-Kidnapping Act of 1866 .................................. 12 Anti-Ku Klux Klan Act of 1871 ........................... 12-13 Anti-Peonage Act of 1867 ....................................... 12 Civil Rights Act of 1866 ...................................... passim Civil Rights Act of 1875, 18 Stat. 335 (1875)...... 20 Civil Rights Act of 1964, Title V II............. 5, 25, 27, 28, 30 Civil Rights Attorneys’ Fees Awards Acts of 1976> ................................................................... 26,28 Equal Employment Opportunity Act of 1972 ...26, 27, 28 Pennsylvania Act of March 22, 1867.................... . 19 Public Accommodations Act of 1875........................ 13 Revised Statutes of 1874................................... 8 Voting Rights Act of 1870 ..................................... 8 LEGISLATIVE MATERIALS Cong. Globe, 39th Cong., 1st Sess. (1866)................passim S. 232, 39th Cong., 1st Sess. (1866)......................... 17 Cong. Globe, 43d Cong., 1st Sess. (1874)................. 19 117 Cong. Rec. (1971) ....................................... 28 118 Cong. Rec. (1972)................................... 27 iii TABLE OF AUTHORITIES—Continued MISCELLANEOUS AUTHORITIES paffe Avins, The Civil Rights Act of 1875: Some Re flected Right on the Fourteenth Amendment and Public Accommodations, GO Colum. L. Rev 873 0966) ..................................................................... 20 Belz, A New Birth of Freedom: The Republican Party and Freedman's Rights, 1801-1806 8 Cardozo, B., The N atw e of the Judicial Process (1921) ..................................................................... 21 Casper, Jones v. Mayer: Clio, Bemused & Con fused Muse 1968 Sup. Ct. Rev. 89 ....................... 8 Cincinnati Commercial, March 30, 1806 ................. 15 Cincinnati Commercial, April 10, 1800 ........... 16, App. B Cooper, Stare Decisis: Precedent & Principle in Constitutional Adjudication, 78 Cornell L. Rev 101 (1988) ........................................................ ' 21 Eskridge, Overruling Statutory Precedents, 70 Oeo. L.J. 1801 (1988) ................................... ’ 20-21 Fairm an, C, Reconstruction <6 Reunion (1971).... 8,11 Flack, The Adoption of the Fourteenth Amend ment (1 9 0 8 ).................................. jg Mallz, The Nature of Precedent, 00 N.C L Rev 807 (1988)........ ............................................. ' 21 Mallz, Reconstruction Without. Revolution: Re publican Civil Rights Theory in the Era of the Fourteenth Amendment, 29 H our. L Rev 221 (1 9 8 0 ) . ...................................................' ......... ' 14 Philadelphia North American (April 10, 1866) App. B Restatement (Second) of Contracts....................... 6 Schurz Report, S. Exec. Doc. No. 2, 89th Cong\, 1st Sorr. (1 8 0 5 )..................... .......................8> 10, 11, 12, 16 iv BRIEF OF AMICI CURIAE THE WASHINGTON LEGAL FOUNDATION CONGRESSMEN HENRY J. HYDE, JACK F. KEMP NORMAN D. SHUMWAY, ROBERT S. WALKER, GEORGE C. WORTLEY, ROBERT E. BADHAM, DONALD E. “BUZ” LUKENS, WILLIAM E. DANNEMEYER* SENATORS JESSE HELMS, GORDON J. HUMPHREY STEVE SYMMS; THE LINCOLN INSTITUTE FOR RESEARCH AND EDUCATION, AND THE ALLIED EDUCATIONAL FOUNDATION IN SUPPORT OF RESPONDENT INTERESTS OF AMICI CURIAE The interests of amici curiae are described in Appendix A hereto. STATEMENT OF THE CASE . Amici adopt the Statement of the Case as set forth in respondent’s brief. SUMMARY OF THE ARGUMENT The issue presented in this case is fundamentally a question of separation of powers and fidelity to the rule of law. Amici submit that Runyon v. McCrary, 427 U.S. 160 (1976) should be reconsidered and overruled or mod ified because it is a clear misinterpretation of the intent of the Congress that enacted 42 U.S.C. § 1981, and be cause stare decisis concerns are not compelling in this case. The language of Section 1981, which quite often is ignored in judicial interpretations, clearly shows that the rights guaranteed were of the nature of legal capacities including the capacity to contract. The legislative historV of Section 1981, whether derived from the Thirteenth or Fourteenth Amendments, further demonstrates that in tent. Nevertheless, by providing freedmen with these legal capacities, Section 1981 enabled private wrong doing to be redressed without tht tortured reading that petitioner gives to the “right to contract” clause. Stare decisis, which is rooted in the stability of the law, is not compelling here precisely because Runyan 2 gives Section 1981 an unsettled reading. Finally, Con gress lias not “affirmatively endorsed” Runyon or other decisions interpreting Section 1981. The legislative ac tivity cited by the petitioner is equivocal at best, but in any event, is no Substitute for the proper exercise of con gressional powers under Article I of the Constitution. This Court should not usurp the role of Congress even if some of its members may be willing to shirk their legis lative responsibility to make the hard policy decisions. ARGUMENT T. CONGRESS INTENDED THAT SECTION 1981 RE MOVE ONLY LEGAL DISARILITIES IMPOSED HY TIIE STATES AND SUCH A READING OF THE LAW HAS HAD THE EFFECT OF REMEDYING DOTH PUBLIC AND PRIVATE DISCRIMINATION. A fundamental principle of statutory interpretation is that courts are to examine the words that the legisla ture chose in framing the law and to give those words their ordinary and plain meaning as they were un- derstood at the time they were used. See Central Ma chinery Co. v. Arizona, State Tax Comm’n, 448 U.S. 160, 166 (1980) (statutes must be interpreted “in light of the intent of the Congress that enacted them” ). A corollary rule is that the words of the statute are to be read in the context of the entire statute in question. It is only when those words are unclear or their meaning ambiguous, either bv themselves or in context with the rest of the statute in question, that a court should look outside the statute to discern what the Congress meant by the lan guage it selected. Although these rules of statutory construction are ba sic, am ici find it necessary to repeat them because they are disregarded by the petitioner. In her 118-page brief, the petitioner’s methodology of discerning congressional intent is, as she puts it, “an essentially pragmatic one.” Pet. Brief at 40. That is, faced in 1866 with evidence of wrongdoing by private individuals against the freed- men, did the 39th Congress intend to outlaw only public discrimination by passing the 1866 Act? Accordingly, petitioner s brief first discusses the existing conditions that the freed slaves faced (Pet. Brief at 14-40), and then it analyzes the congressional debates on the bill (Pet. Brief at 41-71). We are also told what the editorial writers of certain newspapers felt about the legislation. (Pet. Brief at 49). The remainder of the brief deals with the legislative acquiescence of later Congresses and the stare decisis doctrine. Notably absent in all of this is any discussion and analysis of the language of Section 1981 itself. Amici believe it is imperative that any judicial interpretation or re-interpretation of Section 1981 must begin—and indeed may even end—with the language Congress chose. The law as written is what this Court is required to in terpret. As Justice Stevens, speaking for the Court in Mohasco Carp. v. Silver, 447 U.S. 807 (1980), stated: “It is our task to give effect to the statute as enacted.” 1 Accordingly, amici will first examine the language of Section 1981, and then discuss the congressional debates and the context in which the law was passed, including subsequent litigation, to demonstrate that Congress in tended to provide the freedmen with important legal capacities. A. The Language of Section 1981 Section 1981 states in fu ll: All persons within the jurisdiction of the United States shall have the same right in every State and 3 Id at 819. In Mnhnsco, Justice Stevens gave a literal reading to the filing requirements of the Civil Rights Act of 19C.4 and rejected a pro se discrimination complaint as untimely even though the lower court’s more equitable interpretation of the Act would be faithful to ‘the strong federal policy of insuring that employment discrimina tion is redressed.” Id. at 818. The Court ruled that the word "filed" used in two separate subsections of the same statute must be given the same meaning. 4 Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal bene fit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, pen alties, taxes, licenses, and exactions of every kind, and to no other. The key phrase in question is the “right . . . to make and enforce contracts.” 0 These precise words are crucial to a proper understanding of the statute. Grammatically, the rights declared are cast in infinitive phrases, e.g., “to make and enforce contracts,” “to sue, be parties, give evidence.” As this statute is discussed and analyzed in various cases, however, the Court and the parties quickly deviate from this original language and begin discussing this phrase as if it were a gerund, i.e., that 1981 pro hibits discrimination “in the malting and enforcement of private contracts.” Runyon v. McCrary, 427 U.S. 160, 163 (19761. (Emphasisadded.) The gerund is often converted into a noun when we are told that iSection 1981 prohibits “employment dis crimination.” Johnson v. Railway Express Agency, Inc., 421 U.S. 459, 460 (1975). Thus, the language of § 1981 has undergone a judicial metamorphosis such that the “right to make” no longer reflects the right or capac ity “to do” something; rather, it has come to mean an ongoing process by the use of a gerund—“no discrimina tion in the malting and enforcement of a contract—as well as “employment,” a noun denoting a status or rela tionship. Amici believe that this deviation from the ac tual language of Section 1981 has caused some of the difficulties in applying it to cases such as this.'2 3 2 More accurately, the phrase under scrutiny is simply the "right • • • to make . . . contracts” since all parties would agree that the "right to enforce” contracts means only the right to enforce the contract in a court. As such, that right cannot he infringed by private persons once a contract has been made. That is why we find petitioner in this case struggling to fit her allegations that she was harassed during the performance of 5 As Justice White clearly put it in his dissent in Runyon: On its face the statute [which] gives “ fa]ll per sons . . . the same right . . . to make . . . contracts . . . as is enjoyed by white citizens” clearly refers to rights existing apart from this statute. Whites had at the time when § 1981 was first enacted, and have [today]. . . . no right to make a contract with an unwilling private person, no matter what that per son’s motivation for refusing to contract. . . . What is conferred by 42 U.S.C. § 1981 is the rights-which was enjoyed by whites—“to make contracts” with other willing parties and to “enforce” those contracts m court. 427 U.S. 160, 193-94 (emphasis in original). Slaves were considered chattel or property and thus had no legal rights or capacities whatsoever. Section 1 of the Civil Rights Act of 1866 gave the freed slaves both citizenship and the natural rights that go along with that status. The right of a citizen to “make a contract” means the legal capacity to accept offers or to make them, her job into the language of the statute. She does this by creating the fiction that her single at-will contract with her employer is really a new contract to be made every day, and that her agree ment to work each day with the possibility of being harassed in ap parently a condition precedent to her acceptance of a daily contract to work. See Transcript of Oral Argument at 10 (Feb. 29, 1988). This novel theory obviously gave the Court some difficulty and the Court alluded to it as one of the reasons that caused it to rehear this case and reconsider Runyon. See Patterson v. McLean Credit Union, 108 S.Ct. 1419 (1988). If a single contract at-will can be construed to be multiple contracts made each work day, as peti tioner contends, why not construe it as multiple contracts made each hour (since the employee is likely to be paid by the hour), ad infinitum.7 In that way, the transformation of the phrase “to make a contract into "performance of a contract” is complete. Amici believe that the language of § 1981 cannot bear such con struction and that claims for discrimination under the terms and conditions of employment, including harassment, are more properly covered by Title VII, 42 U.S.C. § 2000e-2 and related state claims such as tortious interference with contractual rights, or breach of implied duty of good faith in the performance of a contract. 6 but not the right to compel others to accept offers or make them.4 * * That Justice White was correct in characterizing the “right . . . to contract” as a legal right or capacity to contract is evidenced by examining the other “rights” provided in Section 1981. For example, all persons are given the ‘bight . . . to sue, be parties, give evidence, and to lenjoy] the full and equal benefit of all laws arid proceedings for the security of persons and property as is enjoyed by white persons. . . .” It is evident that the other “rights” provided by Sec tion 1981 involve rights that affect the legal status or capacity of the person. Those rights can only be affected by the state rather than by private individuals/ 4 Even as a nml.ler of simple contract law, the majority in Runyon erred. The Court staled that the private schools “advertised and offered its “educational services” to “members of the general pub lic” through the Yellow Pages and brochures addressed to "resi dent. 127 11.8. at 166, 172. The Court thus characterized the school as the "olferor” and the public as “offerees.” Id. at 171. However, il is well-settled under contract law that advertising does not constitute an “offer.” See Restatement (Second) on Contracts, §§ 23, 20, Comment b. At best, it is a solicitation for offers from those who read the advertisements. Sec Steinberg v. Chicago Medi cal School. 09 III. 2d :’,20, 271 N.E. 2d 634, 639 (1977). Indeed, in common parlance, an applicant (offeror) may have his or her ap plication accepted” by the school (offeree). The private school is not bound In accept all the offers made to it. Even after the school has accepted the offer, the olferor is usually not bound under normal contract rules lo I he contract, but instead is allowed a certain period of time within which to confirm or reject the contract. In such a case, the school does eventually extend a legal "offer.” In any event, the plaintiffs in Runyon were at least one if not two transaction levels away from being considered an "offeree” as this Court mis- characterized them. •O f course, if someone has the right to give evidence, that is, to testify in court, theoretically that right can be frustrated if the potential witness is kidnapped by private individuals to prevent the giving of the testimony at a particular proceeding. But those kinds of private wrongs are not addressed in this legislation but in other sections of the civil rights laws. See, c.g., 42 U.S.C. § 1985(3). 7 Thus, to be internally consistent, the “right . . . to contract” must be interpreted in the same way as the other rights specified in § 1981. After all, if it is a rule of construction that the same word used twice in a stat ute should be interpreted the same way (see Mohasco Corp. v. Silver, supra), a word used only once (“right” ) should mean the same for all of its subsequent descrip tive modifiers. Since those other rights indisputably refer to legal capacities, and the removal of legal disabilities, so too is the right to contract. No one could argue, for example, that since the freedmen have the “right to give evidence or testify in court that a potential witness in a criminal or civil action could sue the prosecutor or at torneys involved for failing to call them as witnesses, alleging discrimination/ B. The Legislative And Legal History Of Section 1981 Amici submit that because the language of Section 1981 is clear, there is no need to examine the legislative his tory of the measure. Nevertheless, an examination of that history clearly shows that Congress intended only to remove legal disabilities.7 Thus, if Section 1981 is interpreted to mean that discrimina tion is prohibited "in the making of a contract” so too must it be prohibited “in the giving of evidence” or in "testifying.” Does a prosecutor risk violating Section 1981 or a private defense attorney for inteirogating a black witness in a “harassing” manner? Are jury members liable for a suit under Section 1981 because it is alleged that the jurors gave more credence to the testimony of a white witness or party than a black one, or vice-verbal See McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 (1976) (white persons may invoke §1981). Could a student of one race sue the school for discrimination under § 1981 because the student claims that he or she is being "disciplined” (harassed) more than students of a different race in performance of his or her educational contract? These issues will be further discussed below under the section on stare decisis. 7 Amici agree completely with Justice White’s analysis in Runyon of the legislative history of Section 1981 which shows that it is derived not from Section one of the Civil Rights Act of 1866, but from Section 16 of the Voting Rights Act of 1870 which was passed 8 1. The Scliurz Report. At the outset, amici do not dispute for the most part the historical picture painted by the petitioner of the abuses suffered by many of the former slaves in 1865 after they were freed. The petitioner cites at length the findings in the reports of General Carl Schurz and others which describe the various abuses committed by the for mer slave owners and others from the time of the slaves’ emanicipation toward the end of the Civil W ar until November, 1865. Pet. Brief a t 16-40.® pursuant to tho Fourteenth Amendment proscribing only discrimina tory state action. 427 U.S. at 192. The petitioner’s argument that the Reviser’s marginal note in the Revised Statutes of 1874 cap tioned equal protection of the laws” appeared after the 1874 law was revised (Pet. Hrief at 6), does not diminish the unrefuted and unequivocal statements of Senator Stewart indicating that what is now Section 1981 applied only to state action. Runyon 427 U S at 210. Nevertheless, amici will demonstrate that even if Section 1981 is derived from both the Voting Rights Act of 1870 and the Civil Rights Act of 1800, or for that matter, from the Civil Rights Act of I860 alone, the .19th Congress did not intend in I860 to require unwilling parties to make private contracts. As even Justice Stevens clearly put it in his concurring opinion in Runyon: There is no doubt in my mind that that construction of the statute [that section 1 of the Civil Rights Act of I860 pro hibits private racial discrimination] would have amazed the legislators who voted for it. Roth its language and the his torical setting in which it was enacted convince me that Con gress intended only to guarantee all citizens the same legal capacity to make and enforce contracts, to obtain, own, and convoy property, and to litigate and give evidence. 427 U.S. at 189-90. For an excellent scholarly discussion of the history of the Reconstruction legislation and criticisms of the rationale in Jones v. Alfred. //. Mayer, 192 U.S. 409 (1968), see C. Fairman, Reconstruction and Reunion 1117-1258 (1971) ; Casper, Jones v. Mayer: Clio, Remused and Confused Muse, 1968 Sup. Ct. Rev. 89. See yeneraUy Hclz, A New Rirth of Freedom: The Re publican Party and Freedman's Riqhts, 1861-1866 (1976) 8 S. Exec. Doc. No. 2 ,19th Cong., 1st Sess. 9 The fact that the Congress was aware of these prob lems when it began in January 1866 to consider the Civil Rights Act, however, does not mean that the Congress in tended to address all of those problems and their mani festations in one of the very first pieces of legislation that came before them. In addition, other legislation was proposed and some of it enacted into law between 1866 and 1875 which deals specifically with private discrimi natory action. Thus, petitioner’s “pragmatic approach” of discerning legislative intent is disingenuous, and does not take into account the fact that Congress does not fully address a problem all at once. But as will be demonstrated below, even many of the problems referred to by the petitioners of private dis crimination were able to be corrected bv the Civil Rights Act of 1866 because of the right given to the freedmen to sue in courts and give evidence. Thus, although amici maintain that Congress only intended to remove legal disabilities of the freed slaves, that notion is not in compatible with the prospect that private discriminatory actions would also thereby be redressed. In amici'* view the traditional “either/or” question of “whether Section 1981 covers only state action or does it also prohibit pri vate discrimination” is therefore misleading. The debates of the 1866 legislation during the three montJis from the time the bill was introduced by Sena tor Trumbull on January 6, 1866, until the law was passed over President Johnson’s veto on April 9, dearlv show that the 39th Congress was attempting to remove or prevent the legal disabilities that were or might be Placed in the way of the freed slaves. To put this in perspective, after the 13th Amendment was ratified in December 1865, it was unconstitutional for slavery or involuntary servitude to “exist” except for punishment of a crime. While it was incumbent upon the reconstructed southern states to enact laws to protect 10 the newly freed slaves, many of these measures were thinly veiled disguises to perpetuate many features of the slave system. These “Black Codes” as they were called, were ostensibly enacted to protect the freed Negroes, but contained pernicious measures such as making vagrancy a crime and thereby subjecting the former slave to in voluntary servitude. The petitioner’s brief attempts to downplay the prob lems that blacks faced by these legal disabilities by stat ing, for example, that at the time that General Schurz drafted his report in November 1805 detailing the post war abuses in live southern states, there were only “scat tered local ordinances in Louisiana and Mississippi, meas ures which Schurz acknowledged were as of yet ‘mere isolated cases.’ ” Pet. Brief at 24. The petitioner seriously mischaracterizes the thrust and import of the Schurz report, however, by attempting to show that private conduct rather than laws or regula tions were of primary concern to Schurz (and inferen- tially, to the Congress). Much of the report, however, focused on these local ordinances and what they forebode to the freed slaves if such laws were used to replace the old slave codes. Thus, rather than diminishing the im pact of these regulations, Schurz quoted whole sections of them, some of which he noted “deserves careful perusal.” " " Seinin'. Report at 23. Schurz highlighted the following regula tions of a Louisiana town : Section No negro or freed man shall be permitted to rent or keep a house within the limits of the town tindrr any cir- cnmslunrcx, and any one thus offending shall be ejected and cowpell.nl In find nil employer or leave the town within twenty- four hours. The lessor or furnisher of the house leased or kept as above shall pay a fine of ten dollars for cnch offence. Section A. No negro or freedman shall reside within the limits of I he town of Opelousas who in not. in the reynlar nervier of so we while person or former owner. Id. (emphasis in original). 11 Schurz was obviously concerned about the effect these laws and regulations had on the status of the freed slaves, and he had a clear sense that these regulations in Mississippi and Louisiana portended a bleak future for the blacks if other jurisdictions were to embark on the same path. It was in this context that Schurz stated: “It may be said that these are mere isolated cases; and so they are. But they are the local outcroppings of a spirit which I found to prevail everywhere.” Schurz Report at 25. Thus, rather than finding Schurz dismissing these reg ulations as “mere isolated cases” as petitioner would have us believe (Pet. Brief at 24), we find Schurz sound ing a warning note of state legislative activity to come.”’ Of course, what Schurz was referring to was the soon to be enactment of the infamous Black Codes on a state wide lather than local basis. Indeed, Schurz’s warning was correct, for after his report was finished, not only did South Carolina enact its Black Code, but similar ones were enacted at the end of 1865 by Louisiana, Missis sippi, Alabama, and in early 18^6 by Virginia, North Carolina, Georgia, and Texas. See Fairman, Reconstruc tion and Reunion 106 (1971)." 10 10 Schurz’s report continues: [Tjhere are systems intermediate between slavery as it for merly existed in the south, and free labor as it exists in the north, but more nearly related to the former than to the latter, the. introduction of which will hr attempted. I have already noticed some movements in that direction, which . . . [the Louisiana] ordinances were the most significant. Other things of more recent date, such as a new negro code submitted by a committee to the legislature of South Carolina, are before the country. They have all the same tendency fas the municipal regulations of Louisiana], because they spring from the same cause. Schurz Report a t 33 (emphasis in original). " Another example of the petitioner’s mischaracterization of the Schurz’s report as emphasizing private wrongs rather than legal disabilities is the petitioner’s cite to Schurz’s report: 12 2. Congressional Debates In The 39th Congress. An examination of the numerous statements made by the proponents of the Civil Rights Act of 1866 clearly demonstrate that Congress did not intend to require pri vate individuals to contract with others, but rather in tended to remove legal disabilities and to punish state officials for violating those rights. While the phrase “state action” was not used in those days, the key con cern of (lie Congress after the Civil War was the con stitutional limits of the federal government to interfere in state aflairs.1'-' There is not a single unambiguous statement in the numerous debates which indicated that Congress intended to legislate beyond the state level and go so far as to regulate private contractual decisions. Such a notion would have sparked great debate.1'1 "| M |any ingenious heads set about to solve the problem, how to make free labor compulsory. . . Petitioner’s Brief at 2:’,. What is ingenious is petitioner’s con venient use nl the ellipsis; the rest of the sentence of that excerpt reads; "by permanent regulations.” Schfttjz Report at 22. The peti tioner also ignores another relevant statement by Schurz who quotes Colonel Thomas’s observations that the private prejudices are 'apt to bring forth that sort of class legislation which produces lairs to govern one class with no other view than to benefit an other.” Selim /. Report a t 21. (emphasis added). It is ludicrous, therefore, for amici Eric Foner, et. al., to argue that the framers "did not recognize the modern ‘state action doc trine as a possible . . . limitation on their power to redress civil rights violations.” Itrief at II. While the framers could be easily forgiven ror not understanding our "modern state action doctrine,” they certainly understood the "old” state action doctrine and leg islated in Mini context. The principal argument during the de bates centered around Congress’ constitutional power to "enter the domain of a Stale and interfere with its internal police, statutes, and domestic regulations.” (Cong. Globe, 29th Cong., 1st Sess. 1120 (Rep. Rogers) >. 11 * * 11 Where Congress legislated against private racial conduct, it dearly dul so. ,SYr. »■.»/.. the Anti-Kidnapping Act of 1800, the Anti- Peonage Act of 1807 (see 42 U.R.O. § 1994), the Anli-Ku Klux 13 What one clearly finds in the debates is an attempt to codify the “natural rights” belonging to the freed slaves. Thus, the first section of the 1866 bill declares that “all persons born in the United States . . . are hereby de clared to be citizens of the United States. . . .” While this declaration was later constitutionalized in the Four teenth Amendment, the 1866 Act proceeded to declare what the natural rights were that were associated with citizenship. Those natural rights were described by Con gressman James F. Wilson, House floor manager of the Civil Rights Act, and other proponents of the bill as they were described by Blackstone, Chancellor Kent, and other legal philosophers, i.e., the “right of personal security” (legal enjoyment of his life and limb) j “right of personal liberty” (described as a power of locomotion or travel); and “right of personal property” (to acquire and dispose of his acquisitions). Cong. Globe, 39th Cong., 1st Sess. 1118. As Congressman Wilson stated: It is not the object of this bill to establish new rights, but to protect and enforce those which al ready belong to every citizen. . . . If the States would observe the rights of our citizens, there would be no need of this bill. . . . And if above all . . . the State should admit . . . that a citizen does not surrender these rights because he may happen to be a citizen of the State which would deprive him of them, we might without doing violence to the duty devolved upon us, leave the whole subject to the several States. But . . . the practice of the States leaves us no avenue of escape, and we must do our duty by supplying the protection which the States deny. Id. at 1117-18 (emphasis added).M Klan Act of 1871, 42 U.S.C. §§ 1985, 1980, and the Public Accom modations Act of 1875. H Amici do not understand how amici Foner, ct al., who cite only the last phrase of this passage "we must do our duty by supplying the protection which the states [sicl deny.” Foner Brief at 10, can possibly claim that Wilson's statements support their 14 As one commentator put it, if the guarantee on the right to make and enforce contracts were viewed as pro hibiting private discrimination, “the Bill would not only have effected a truly rev olutionary change in the federal system but would also have been entirely inconsistent with the very natural rights theory which the Republicans sought to implement. . . Maltz, Reconstruction Without Revolution: Republican Civil Rif)hts Theory in the Era of the Fourteenth Amend ment, 24 Ilous. L. Rev. 221 (198G).,r> Numerous other statements by the proponents of the bill further demonstrate the state action nature of the measure. Typical is the statement of Senator Trumbull, the bill’s sponsor: I The bill 1 will have no operation in any State where the laws are equal, where all persons have the same civil lights without regard to color or race. It will have no operation in the State of Kentucky when her slave code and all her laws discriminating between person on account of race or color shall be abolished. Cong. Globe, 391h Cong., IstSess. 470.“’ argument llial Congress intended to legislate against discrimination by private persons rather than l>y the state. ,r’The argument that the law was not needed to strike down the Black Codes heeause the military commanders under the Freedmen’s Bureau had Begun to enjoin the operation of some of those laws is misleading. Sir Foner Brief at 8. The Civil Rights Act was seen as legal mechanism to replace that military procedure in a compre hensive manner. As Congressman Thayer noted, the very fact that the military was attempting to deal with the Black Codes "demonstrates the necessity for enforcing the guarantees of liberty and of American citizenship conferred by the Constitution . . . fn |o t by military force . . . but through the cpiiet, dignified, firm, and constitutional forms of judicial procedure.” Cong. Ciobe at 1153. ,n .Sec also ill. at 174 (Sen. Trumbull) ; id. at 1118 (Rep. Wilson); id. at 12!)I (Rep. Bingham): id. at 1203-1294 (Rep. Shellabargcr). 15 Even after President Johnson’s veto of the bill (which referred to the law as providing a “capacity to make a contract,” Cong. Globe 1690) Senator Trumbull insisted in unambiguous language that: This bill in no manner interferes with the munic ipal regulations of any State which protects all like in their rights of person and property. It could have no operation in Massachusetts, New York, Illinois, or most of the States of the Union. Id. at 1761. Petitioners are unable to refute or counter this clear and overwhelming evidence of legislative intent by the sponsor and supporter of the bill. Instead, they quibble with a bit or two of inconsequential legislative state ments referred to in Justice Harlan’s dissent in Jones v. Alfred H. Mayer Co., claiming he is taking them out of context.17 Petitioner’s reliance on the editorial comments by sev eral newspapers on the bill as somehow evidencing Con gressional intent to regulate private conduct is not only exceedingly weak, but inaccurate. For example, peti tioner cites to the Cincinnati Commercial of March 30, 1866, raising the spectre of the bill applying to public accommodations such as hotels and theaters. Last minute 17 Thus, when Justice Harlan quoted an excerpt of Congressman Thayer's remarks about the "tyranny of laws,” the petitioner seizes upon an earlier statement where Thayer spoke of "tyrannical acts, the tyrannical restrictions, and the tyrannical laws.” Petitioner Brief at 60. Amici find no discrepancy here. Tyrannical laws qua laws are of no real effect unless some official or even private person "acts” pursuant to them. In addition, it is hardly a “tyrannical act” if a person decides not to enter into a voluntary contract. If anything, it is tyranny to force such private conduct. This scrap of legislative intent hardy proves petitioner’s point. And if peti tioner is so concerned with quoting Thayer in context, she seems content to overlook his remarks just one sentence later from Har lan’s reference, where Thayer talked about “the ability to make a contract; . . . the ability to sell or convey real or personal estate.” Globe at 1152 (emphasis added). Obviously, Thayer is talking in terms of legal capacities, not absolute rights. 16 editorials, or even a remark made by a bill’s opponents to exaggerate the impact of measure to scare off votes, is nearly weightless evidence of intent by those who voted for the bill, just as a dissenting opinion in a court deci sion does not authoritatively explain the holding of the majority opinion.,R 3. Judicial Enforcement. While Section 1 of the Civil Rights Act of 1866 was couched in declaratory terms and did not proscribe private conduct, the removal of legal disabilities would themselves remedy the private wrongs petitioner refers to in her brief. Ily prohibiting the states from incapacitating the freedmen from his right to make contracts, to sue, and to enjoy the equal protection of the laws, those very rights would go a long way to redress the abuses committed against the freedmen. For example, we are told in the Schurz report that the emancipated Negroes who walked away from the planta tions “were shot or otherwise severely punished. . . .” Pet. Brief at 20. By giving the Negro the right to give evi dence, their allackers could he prosecuted for murder, criminal assault, kidnapping, and the like. After all, crimes of violence against slaves and freedmen went un punished since blacks could not testify in a court of law. In addition, by giving the freedmen the legal capacity “to sue,” the freedmen could now avail themselves of civil remedies and sue those who would commit violence on them by utilizing common law tort actions of assault, bat tery, false imprisonment, and the like.1” ,fl In any event, mice the Cincinnati Commercial got its facts straight from the Ohio delegation about the scope of the bill, it changed its views in its April 10 edition. See Appendix B hereto. Other newspapers agreed. See id. Indeed, Died Scott sued bis former master Sanford for "tres pass in el in mix'’ (trespass with force and arms) for assaulting him, his wife, and his two children by holding them as slaves in 17 As for the abuses suffered by the former slaves in their contractual affairs, those too could be remedied by both the ‘ right to contract and to sue. Thus petitioner tells us that where “contracts agreed to by the land owners contained fair terms, the employers frequently broke them.” Pet. Brief at 22. However, the slaves could now sue for breach of contract, a right which they did not have as slaves. Other abuses such as "defrauding of wages,” “extortion,” and the like could also be addressed under common law rem edies for fraud. Contracts made under duress and so forth could be voided under contract law since there was no voluntary “meeting of the minds.” Forcing a freed- man to work and then not paying him would subject the employer to a suit for quantum meruit. As for disparate treatment of the workers, petitioner states that “ [b]y far the most widespread abuse was the beating or whip ping of black workers.” Pet. Brief at 35. Here again, recourse was now available under tort law for assault and battery. Accordingly, the remedy for the private abuses suffered by the freed slaves flowed from the legal capacities de clared in Section 1, leaving Section 2 of the Act to provide criminal penalties against state officials. Civil actions could also be taken against state officials for violation of the rights in Section 1, including the right to equal pro tection provided therein.*0 Missouri. Sanford claims he was free when he was taken to Illinois, a free state, and remained so upon his return to Missouri. Dred Scott v. Sanford, 112 How. 392 (1850). The Court ruled against Scott on two separate grounds, the first being that Dred Scott was not a citizen of Missouri and thus did not have the legal capacity to sue in the first place. Id. at 427. As previous noted, supra note 13, Congress was able to make itself clear when it was proscribing private conduct as well as providing private lights of action against wrongdoers. See also S.232 (introduced by Senator Doolittle on March 27, 18(>f> to enforce 13th Amendment) including a provision in §4 for civil suit against private wrongdoers to "recover the sum of one thousand 18 If petitioner is correct that Congress primarily in tended to ban private discrimination and provide a civil cause of action in federal court for discriminatory and abusive treatment of the freedmen on the job, where are all the lawsuits that one would expect to have flooded the courts by the abused freedmen? There is not a single lawsuit that petitioner can point to where the abuses she recounts have been adjudicated. Surely, these abuses did not automatically discontinue the day after the law was passed, and are now only rearing their heads 100 years later. Indeed, an examination of the litigation that en sued following passage of the 1866 Act supports amici’s interpretation of the “right to contract” clause. The very first suit filed involving the new Civil Rights Act was instituted on April 11, 1866, just two days after its passage. In Barnes v. Browning, (unreported) a Negro had sued his employer for wages in Indiana state court, but the employer defended by arguing that In diana’s Constitution barred Negro immigration and de clared null and void all contracts made with such persons, and (hat a state law stated such persons could not make or enforce contracts. See Flack, The Adoption of the Fourteenth Amendment 47-48 (1908). The court ruled that the Indiana Constitution and statute which incapacitated the Negro was void under the first section of the Civil Rights Act. - Id. The first decision by the highest stale court applying this law came shortly there after and also was rendered in Indiana. The Indiana Su- piemc Court ruled that a Negro could sue on a promissory note, striking down the laws incapacitating the black to make contracts. Smith v. Moody, 26 Ind. Rep. 299 (1866). Petitioner highlights In re Turner, 24 Fed. Cas. 337, 1 Abb. 84 (1867) as significant because it was a civil suit brought against a white employer for failing to in- (lollni-s. in adilil ion to all ilamaRi-s sustained liy such person, to gether with I lie costs of the prosecution” ). Neither the Civil Rights Act of I Wit; nor Section l'Wl refers to such type of actions. 19 elude certain benefits in the indenture contract that the State of Maryland required to be provided in the iden- ture contracts for whites. Pet. Brief a t 10, n.4. The petitioner cites Chief Justice Chase, sitting as Circuit Justice, as holding that the indenture violates “the first section of the civil rights law enacted by Congress on April 9, 1866. Id. In this instance, the petitioner ne glected to use an ellipsis, for there is a comma after “1866” and the rest of the sentence reads: “which assures to all citizens without respect to race or color ‘full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.’ ” 24 Fed. Cas. at 339. Thus, this habeas corpus action had the effect of striking down the discriminatory state law, and did not discuss the contract clause of the statute. To be sure, there were suits filed by blacks against common carriers, hotels, and so forth for refusing to admit them, or for giving them second-class accommodations when they paid for first-class, and some of those suits were successful. See Foner Brief at 21. But none of these cases, as fa r as amici has been able to determine, dis cussed the contract clause of Section 1 of the Civil Rights Act of 1866. A better explanation of these cases is that under the common law, public carriers and inns had a duty to provide service to all who tendered the required fare or rate. In that regard, they functioned as state actors and were not considered private persons. See Cong. Globe, 43d Cong., 1st Sess. 412 (Cong. Lawrence). In other cases, there may have been state laws that provided for disparate treatment, or there may have been laws that provided for equal treatment but which were not being followed by the carrier. See, e.g., The West Chester and Philadelphia Railroad Company v. Myers, 100 Pa. 209, 215 (1867) (referring to Pennsylvania’s “Act of March 1867, declaring it an offense for railroad com panies to make any distinction between passengers on account of race or color” ). Suits may also have been filed simply on the grounds of breach of contract or bailment. In any event, the Civil Rights Act of 1866 was not universally understood to provide a cause of action in these situations, for it was not until Congress passed the, Civil Rights Act of 1875, 18 Stat. 335 (1875), that it prohibited discrimination by public accommodations, thea ters, inns, and so forth. See Avins, The Civil Rights Act of 1375: Some Reflected Light on the Fourteenth Amend ment and Public Accommodations, 66 Colum. L. Rev. 873 (1966). Even Senator Trumbull, who sponsored the Civil Rights Act of 1866, felt that Congress had no authority to legislate in this area. Cong. Globe, 42 Cong., 2d Sess. 3190. In the notorious Civil Rights Cases, the Supreme Court agreed. 109 U.S. (1883). II. STARE DECISIS CONCERNS DO NOT COMPEL ADHERENCE TO RUNYON. Stare decisis is a judicially created doctrine that is used by the courts to justify their refusal to overrule erroneous decisions. The underlying principle of that doc trine seems to be that stability in the law and the reli ance placed on erroneous decisions are preferable to cor recting judicial mistakes. As Justice Brandeis observed, “ | I | t is more important that the applicable rule of law be settled than that it be settled right. . . .” Burnet v. Coronado Oil & Gas Co.', 285 U.S. 393, 406 (1932). This observation is an overstatement since this Court does not blindly adhere to stare decisis; otherwise, no decision would ever be reversed. Although it is generally stated that the Court is more likely to correct erroneous constitutional decisions than statutory decisions since the latter can be more easily corrected by Congress, the fact is that this Court has frequently overruled many of its statutory cases. Since 1961 alone, this Court has overruled or materially modi fied statutory precedents more than SO times. See Esk 20 ridge, Overruling Statutory Precedents, 76 Geo. L.J. 1361 (1988). Amici submit that the stare decisis concerns articu lated by the petitioner in this case are not compelling and that neither stability in the law nor legitimate reli ance interests are served by adhering to Runyon. A. Runyon Does Not Bring Stability To The Law. Even though he believed that Runyon and Jones v. Al fred H. Mayer Co. were wrongly decided, Justice Stevens concurred in the former out of an “interest in stability and orderly development of the law,” and because of his belief that the “mores of today” dictate liberal construc tion of civil rights statutes. 427 U.S. at 189, 191. Jus tice Stevens also cited Justice Cardoso’s remarks that the “labor of judges would be increased almost to the break ing point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” Id., citing B. Cardozo, The Nature of the Judicial Process 149 (1921).21 Amici submit, however, that this interest in stability and settled law is not compelling in this case precisely because the erroneous interpretation given Section 1981 has been unsettling'and marked by instability. The peti tioner in this case is asking this Court to lay yet another course of bricks on a foundation built on sand. When the Court recently decided to consider whether Runyon should be “modified or overruled,” it did so “in light of the difficulties posed by petitioner’s argument for a fun damental extension of liability under 42 U.S.C. § 1981.” Patterson v. McLean Credit Union, 108 S.Ct. 1419 21 21 Cardozo, however, was writing in 1921 about stare decisis in the context of common law, not statutory law, where fidelity to judge-made law as precedence has more application. Sec generally Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication. 73 Cornell L.R. 401 (1988); Maltz, The Nature of Precedent, 66 N.C. L. Rev. 367 (1988). 22 (1988). Nothing in the briefs filed by the petitioner or her supporting amici address these serious concerns of the Court. Rather, the briefs focus on the general as pects of the stare decisis doctrine. As amici noted earlier, supra n.3, the petitioner’s at tempt to bring her case within the language of Section 1981 is premised on the fiction that her single contract at will is a series of multiple contracts made each work day. Other judges are experiencing difficulties in apply ing Runyon in other contexts as well. For example, in Bliandari v. First National Bank of Commerce, 829 F.2d 13d3 (5th Cir. 1987), an alien brought suit against a bank for refusing to issue him a credit card partly because he was not a United States citizen. The alien sued under Section 1981 claiming that the bank refused to enter into a contract for credit with him. In an en bane decision, a majority of the court declined to apply Runyon to aliens (even though § 1981 applies to all “per sons” ) staling: fo r the reasons expressed by Justice White in his McCrary dissent, and echoed by most observers who take the view that words have an ascertainable meaning, it seems to us beyond serious dispute that the reasoning in Jones and McCrary cannot stand of its own force. Id. at 13d 9. Further unresolved is the reach of Section 1981 into the count less private contracts made every day. Employ ment contracts include a number of personal relation ships voluntarily entered into between parties. As Jus tice While stated in his dissent, “a racially motivated refusal to hire a Negro or white babysitter” would sub ject. the parents to liability under Runyon's reading of Section 1981. d27 IJ.S. at 211. Amici, and no doubt the petitioner as well, do not share Justice Powell’s observation in Runyon that while the private school in that case is “dearly” covered under Section 1981, a “kindergarten 23 and music school . . . are clearly on other side.” There is nothing clear about it. Furthermore, since § 1981 can be invoked by whites as well as by blacks, see McDonald v. Santa Fe Trail Trans portation Co., 427 U.S. 273 (1976), one is faced with the anomaly, as Justice White described in Runyon, of a “former slaveowner [being] given a cause of action against his former slave if the former slave refused to work for him on the ground that he was a white man.” 427 U.S. at 211. Modern day anomalies can be found as well. In NAACP v. Claiborne Hardware Company, 458 U.S. 886 (1982), for example, white merchants, invok ing state laws, had sued the NAACP and its local sup porters in Claiborne County, Mississippi in 1972 for boy cotting their stores and intimidating black customers to keep them from patronizing the targeted businesses. This Court ruled that recovery could be had for damages that were attributed to that part of the boycott that resulted in violence, but not for the peaceful aspects of the boy cott protected by the First Amendment. Id. at 890. Under the rationale of Runyon, the plaintiffs in Clai borne could have alleged a cause of action under Section 1981 against the NAACP. After all, by boycotting the stores and intimidating others into doing so as well, they were refusing to enter into contracts with others because of their race. In addition, a cause of action under both Sections 1981 and 1982 would clearly have been available to the blacks who wanted to patronize the stores but who were harassed by the enforcers of the boycott (the “black hats” ), id. at 895 (c/. to the “black cavalry” of 1866), had their houses fired upon, id. at 904, icf. Shaare Tefda Congregation v. Cobb, 107 S. Ct. 2019 (1987), and had goods purchased in white-owned stores forcefully taken away from them. Refusals to contract with U.S. com panies that do business with South Africa could subject the local governmental units or private organizations which have adopted such policies to liability under Sec tion 1981. 24 Tlio prospect of having Section 1981 apply to peaceful economic boycotts is only one of many examples that rlemonsl rates the open-ended and unsetting nature of the Court’s decision in Runyon. Section 1981, aS interpreted in Runyon, would create a cause of action for all racially- motivated torts interfering with the enjoyment of any kind of contractual rights, whether caused by the other contracting party or even by third persons. The issue is not whether such results are desirable or undesirable, but whether the Congress or the courts should be making lliose policy decisions. Instability and uncertainty in the law will continue unless this Court returns to the text and original meaning of the statute. See Johnson v. Transportation Aycvcy of Santa, Clara County, 107 S.Ct. 1412, 1474 (1987) (“substitution of judicial improvisa tion for statutory text” in the name of stare decisis pro duces not “stability and order” but rather “instability and unpredictable expansion.” ) (Scalia, J., dissenting). I!. The Reliance Interests Are Not Compelling. Another factor considered by the Court in deciding whether to overrule an erroneous decision is to determine whether substantial reliance has been placed on the de cision in (he form of settled expectations and the growth ol institutions on that interpretation. This factor is related to (he stability concern, since it is grounded in the notion that people expect stability in the law and plan their lives accordingly.2- The mil ion Ilia), society expects stability in the law seems to l)e a dow ns one inasmuch as Congress, who makes the law, is not only able I., change or modify it, but often does so in many regula tory areas which greatly affect the reliance interests of businesses, consumers, and taxpayers. Since society has come to expect such changes in IIm law, and often lobbies for or against them, why should courts be loathe to change ‘‘the law” when in fact, all they are doing by reversing an erroneous statutory interpretation is simply restoring the law to what Congress intended it to be in the firsl place? I’ll11heimore, if the Court is not hesistant to upset ex pectations and stability in the law when it examines the validity 25 Just as Justice Stevens stated in his concurring opin ion in Runyon, that “it is extremely unlikely that reliance upon Jones \v. Alfred H. Mayer Co.) has been so exten sive that this Court is foreclosed from overruling it,” 427 U.S. at 190, so too is it unlikely that the reliance on Runyon has been so extensive to preclude its modifica tion or correction. Since Runyon involves applying Sec tion 1981 to prospective contractual rights, there will be no upsetting of contracts already made. Breaches in con tracts are actionable under normal contract law, and dis crimination in employment is extensively covered by Title VII and numerous state laws.* 23 If anything, amici submit that in the area of em ployment law, expectations and institutions have been established under Title VII and state laws that provide for carefully crafted administrative and judicial pro cedures to resolve employee disputes, including concilia tion provisions. These reliance interests must also be of the consistent exercise of power by the other coordinate branches, see, e.g., Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), it should not be so reluctant to do the same when the Court itself oversteps its role and usurps the legislative powers of the Congress. Congress should not be continuously pressed into service to correct this Court’s mistakes since Congress is faced with other pressing problems and a ‘‘docket” no less crowded than this Court’s. 23 State laws prohibiting discrimination arc in many cases far more expansive than federal legislation. See, c.g.. Gay Rights Coali tion of Georgetown University Law Center v. Georgetown Uni versity, 536 A.2d 1 (I).C. Ct. App. 1987) (local human rights law requires religious school to provide facilities and assistance to homosexual student group despite school’s religious objections). Indeed, since Section 1981 originally was directed at the states and rooted in concerns of federalism, its non-application to private con duct would not make it a dead letter or "nullity” as petitioner sug gests. Rather, it would recognize that the primary purposes of § 1981 have been realized and that states are indeed providing pro tections well beyond § 1981, as the amici brief filed by the 47 State Attorneys General ably demonstrates. 26 taken into account. In addition, Section 1981 allows for awards of punitive damages which may be abused.2* C.' Congress Has Not Affirmatively Adopted Runyon’s Interpretation of Section 1981. As part of the reliance component of the stare decisis argument, petitioner cites a series of legislative develop ments in the Congress over the years in the civil rights area, and concludes from this chronology that it is “clear that Congress adopted the body of [casej law interpret ing sections 1981 and 1982, including application of those provisions to the terms and conditions of employ ment.” Pet. Brief at 97. Congressional amici support ing petitioner similarly assert that “Congress Has Af firmatively endorsed This Court’s Interpretation of Sec tion 1981.” Point III of Amici Brief at 20. Congress has done no such thing. While amici are aware of the general proposition that “Congress is presumed to adopt judicial interpretation of a statute when that statute is re-enacted,” Shapiro v. United States, 335 U.S. 1, 16 (1948), the fact of the matter is that since 1874, Congress has never re-enacted Section 1981. Admittedly, Congress has enacted related civil rights measures such as the Equal Employment Opportunity Act of 1972 and the Civil Rights Attor neys’ Fees Awards Act of 1976, in light of judicial in terprets I ions of Section 1981, but there are many reasons for Congressional inaction or acquiescence other than an agreement with those decisions. As Justice Scalia cor rectly observed in his dissent in Johnson v. County of Santa. Cl a ra: -* The iiigimiriil by pet itioner ami amicus American Rar Associa tion that lawyers have relied on Section 1081 in advising their clients of possible avenues of relief for alleged discrimination they may have suffered is of no consequence. Pel. Brief at 104. If that were t rue, then no ease would ever he overturned since presumably lawyers are always advising their clients on what the law is (and more likely what I lie law should lie) as embodied in the erroneous precedent at the t ime they gave their advice. 27 The “complicated check on legislation,” The Fed eralist No. 62, . . . erected by our Constitution creates an inertia that makes it impossible to assert with any degree of assurance that congressional fail ure to act represents (1) approval of the status quo, as opposed to (2) inability to agree upon how to alter the status quo, (3) unawareness of the status quo, (4) indifference to the status quo, or even (5) political cowardice. 107 S. Ct. at 1473 <1987). See also Cleveland, v. United States, 329 U.S. 14, 21 (1946) (Rutledge, J., concurring). For example, the petitioner discusses at length Senator Hruska’s proposed amendment in J972 to the Equal Em ployment Opportunity Act amending Title VII of the Civil Rights Act of 1964, making Title VII the exclusive remedy for employment discrimination. Senator Hruska’s amendment was defeated by the Senate after Senator Williams and Senator Javits stated, inter alia, that liti gants should not be forced to seek remedies in only one place when they frequently “face a large and powerful employer.” 118 Cong. Rec. 3372. Shortly before the vote was taken, Senator Williams forcefully argued that Mr. Hruska’s amendment “will repeal the first major piece of civil rights legislation in this Nation’s history. We cannot do that.” Id. at 3371. The vote on Senator Hruska’s amendment was 33 Yeas, 33 Nays, and 33 not voting. Id. at 3373. This evenly split vote in 1972 by one body of the Congress is hardly a ringing Congressional endorsement of judicial opinions that Section 1981 provides a private cause of action, especially since the vote preceded the Supreme Court’s decisions in this area. See Johnson v. Railway Express Ayency, Inc., 421 U.S. 459 (1975), and Runyon, decided in 1976. The vote is also of dubious weight since some of the negative votes may have been cast on the basis of Senator Williams’ erroneous statement that Sen ator Hruska’s amendment “would repeal” Section 1981. Senator Hruska’s amendment did not propose to repeal 1981, but instead provided for alternative rather than 28 multiple remedies. See Cong. Rec. at 3173. In addition, Senators voting “nay” may not have wanted to "repeal” a statute that forbade discrimination by public officials, or they may have wanted alternative remedies available for suits against small companies, but multiple remedies against the “large and powerful employer” contemplated by Senator Williams. Since this legislative issue simply was not presented cleanly to the Senators, their intent cannot be discerned. On the House side, Congressman Erlenborn offered a substitute bill for the bill reported by the House Judi ciary Committee. Erlenborn’s bill also contained a pro vision making Title VII an exclusive remedy similar to Senator llruska’s amendment. See Pet. Brief at 87. That substitute bill passed the House by 200 to 195. 117 Cong. Rec. 32111. In the Conference Committee, the House exclusive remedy provision was dropped, and the Equal Employment Opportunity Act of 1972 was passed. The final vote for this law can hardly be characterized by the petitioner as one where “Congress endorsed the judicial interpretation of section 1981” as applying to private employers. The oilier major piece of legislation that petitioner cites as evidence of Congress’s adoption of Runyon is the passage of the Civil Rights Attorneys’ Fees .Awards Act of 197(5. That law was designed to remedy this Court’s decision in Alyeska Pipeline Service Co. v. Wild erness Society, 421 U.S. 240 (1975) which held that ordi narily attorneys’ fees will not be awarded absent explicit statutory authorization. The legislation as passed, 42 U.S.C. 5 1988, merely provides that a court may award attorneys’ fees as costs for civil actions that might be brought under 55 1981-1983, 1985, 198G. Since Section. 1983 already provides for civil actions against state officials, petitioner are,ties that Congress meant the law to apply to civil actions brought against private individuals under 1981. A vote for (his measure does not constitute Con gressional endorsement of the Runyon decision any more than (lie vole in 1972 on the EEO Act. 29 Congressmen may have voted for the legislative pack age because they supported the award of attorneys’ fees under sections other than 5 1981, but did not want to cast a negative vote against the entire bill. Others may have felt that the Runyon was wrongly decided, but that if Congress was going to allow for attorneys’ fees in all these cases, it should be allowed across the board.3* 'v If, as we contend, this Court should reverse or modify Runyon, Congressional amici supporting respondent are prepared to debate and enact whatever legislation is necessary to remedy any “gaps” in the law. Indeed, with a virtual veto-proof number of Senators support ing the petitioner as amici, and a substantial number of members of the House of Representatives, any “gap” would surely not go unfilled. While there is a risk that any “remedial” legislation may go far beyond the ruling in Runyon, as was done in the aftermath of Grove City Col lege v. Bell, 465 U.S. 555 (1984), and thus may cause some delay in the legislative process, that is the price one must pay if we are to show fidelity to the separation of powers and the Constitution which reposes “all legislative Pow ers” in the Congress. Art. I, sec. 1. In contrast, Congressional amici supporting petitioner appear all too willing to allow the Court to usurp their legislative powers: The Congress’ primary role in lawmaking under the Constitution dictates that any change in the meaning of the statute be effected legislatively rather than judicially. In exercising its constitutional power to legislate, the Congress must be able to rely on the stability of the Court’s interpretations of its statutes. For this reason, stare decisis . . . operates with its greatest strength where a statutory inter pretation, such as Runyon, is concerned. Congressional Brief at 3. 2!i While petitioner cites a House Judiciary Committee Report discussing Section 1981 cases, the Runyon decision wits not listed. Pet. Rrief at 93. 30 It, is especially important that the Court correct erroneous decisions that expand the intended scope of statutes in areas that generally cover “good govern ment” topics such as environmental, civil rights, and consumer protection laws, not only because Congress has a full calendar already and cannot always deal with erroneous decisions, but because of the additional bur den placed on the passage of correcting legislation per ceived to he “cutting back” in these areas when the law is only being restored to its original meaning. Thus, by leaving Runyon intact, the Court would in essence be given an incentive to read such statutes broadly rather than na- rowlv, allowing the law to be amended judicially in one direction in a ratchet-like manner. Better for the Court to err on lire side of judicial restraint and fidelity to the statute, such as it did in Crone City, and General Elec tric Co. r. Gilbert, 42!) U.S. 125 (1976) (ruling that Title V!1 did not cover discrimination based on preg nancy i, and thereby allowing the Congress to expand the statute'^ reach if it chooses, rather than the other way around and usurping Congress’ powers. CONCLUSION The integrity of and respect for this Court is en hanced by following the rule of law. In deciding this case, the Court should not succumb to what it perceives, either rightly or wrongly, to be (he “mores of the day.” For the reasons staled herein, the decision in Runyon v. McCrary should be reconsidered, and either be over ruled or modified. Respectfully submitted, Da n iel j . P opeo P aul I). K amenar * W asminoton L egal F oundation 1705 N Street, N.W. Washington, P.C. 20036 (202) 857-0240 Dili.-- ' • I . I I - I l ‘> I OS’S * I'rmnso! of If (>eor(1 la APPENDIX A INTERESTS OF AMICI CURIAE The Washington Legal Foundation (“WLF” ) is a national nonprofit public interest law center with more than 120,000 members and supporters throughout the United States. WLF engages in litigation and admin istrative proceedings in matters promoting the free enterprise system and the economic and civil rights and liberties of individuals and businesses. WLF has a record of longstanding interest and in volvement regarding the controversial issues of affirm ative action, racial quotas, and reverse discrimination. In its pursuit of its view that the equal protection clause and the civil rights laws protect all citizens against discrimination, WLF has filed briefs amicus curiae in many of the leading Supreme Court cases in the area. See e.g., Firefighters Local No. 1781, v. Stotts, 467 U.S. 561 (1984); United Steelworkers v. Weber, 443 U.S. 193 (1979); City of Richmond v. Croson, No. 87-998 (S. Ct. 1988). Congressional amici Congressmen Henry Hyde, et al., are here to assert and preserve their legislative interests under Article 1 of the Constitution. They are concerned that the Court has all too often usurped the powers of the Congress in adjudicating cases before it, and desire to have this Court perform its function under Article III by faithfully interpreting the statutes of Congress as enacted. The Lincoln Institute for Research and Education, named after Abraham Lincoln, was founded in 1978 to study public policy issues that impact on the lives of black middle America, and to make its findings available to elected officials and the public. The Institute, based in Washington, D.C., aims to reevaluate those theories and programs of (he past 2a decades which were highly touted when introduced, but have failed to fulfill the claims represented by their sponsors—and in many cases, have been harmful to the long-range interest of blacks. The Institute is1 dedicated to seeking ways to improve the standard of living, the quality of life and the freedom of all Americans, and has also appeared as amicus in City of Richmond v. Croson. Amiens the Allied Educational Foundation (AEF) is a non-profit charitable and educational foundation based in Englewood, New Jersey. Founded in 1964, AEF is dedicated to promoting education in diverse areas of study such as history, law, and public policy, and has appeared as nmiens in this Court on several occasions in cases involving individual rights. 3a APPENDIX B Cincinnati Commercial, April 16, 1866 (p. A) “The Civil Rights Bill reduced to the facts and adapted for practice does not seem to have the portentous propor tions which it assumed in theory while under discussion. Congressmen who support it declare that it has no opera tion whatever in three-fourths of the loyal States (in cluding Ohio) and none in three or four of the rebel States, that it does no more than our military com manders are doing in the Southern States where the Black Codes are unrepealed and is intended a law simply authorizing to be done what the President is doing. A few months experience will develop the scope and bearing of this measure and possibly may go far to settle the differences between the President and Congress by show ing that they were in many particulars unsubstantial.” Philadelphia North American, April 10, 1866 (p. 1, col. 1) “It secures to all such, without any distinction of race or color, the right to testify in courts of justice, or in law proceedings of any kind; to sue and be sued; to plead and to be impleaded; to hold property; to conduct busi ness; to be free from outrage in person or property, and to enjoy all the liberties peculiar to our institutions ex cept suffrage. This does not, however, include any right to sit on juries or to hold office, or to go in any car, coach, hotel, church, public place, etc., where the local regulations prohibit it. It, in fact, is only a law to pro tect the rights of persons and property. It does not undertake to deal with political rights at all, nor does it meddle with the social position of any race or class.”