Memorandum on Pending Steel Consent Decree Litigation

    No. 87-107

In The

Supreme Court of the United States
October Term 1987

♦

BRENDA PATTERSON,

vs.
Petitioner,

McLEAN CREDIT UNION,

Respondent.

---------------♦---------------

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

---------------♦---------------

BRIEF OF THE CENTER FOR CIVIL RIGHTS 
AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

---------------♦---------------

Clint Bolick*
J erald L. H ill 
Mark J. Bredemeier 
Landmark Legal Foundation 
Center for Civil Rights 
107 Second Street, N.E. 
Washington, D.C. 20002 
(202) 546-6045

^Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 
OR CALL COLLECT (402) 342-2831



1

TABLE OF AUTHORITIES..................................................  ii

INTEREST OF AMICUS C U R IA E...................................  1

SUMMARY OF A RG U M EN T............................................ 2

ARGUM ENT.............................................................................  3

I. CONGRESS NEVER INTENDED § 1981 TO 
REACH PRIVATE CONDUCT, PARTICULARLY 
REFUSALS TO ENTER INTO CONTRACTS. . . .  3

II. STARE DECISIS SHOULD NOT BAR THIS 
C O U RT'S REEXAM IN ATION  OF RUNYON  
UNDER THE UNUSUAL CIRCUMSTANCES OF 
THAT D EC ISIO N ..........................................................  13

CONCLUSION......................................................................... 18

TABLE OF CONTENTS
Page



Cases

Boys Markets v. Retails Clerk Union, Local 770, 398 
U.S. 235 (1970).......................................................................  16

Brown v. General Services Administration, 425 U.S.
820 (1976)...................................................................................15

Civil Rights Cases, 109 U.S. 3 (1883)...................10, 11, 13

Corrigan v. Buckley, 271 U.S. 323 (1926)........................... 13

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)..........  14

Garcia v. San Antonio, 469 U.S. 528 (1 9 8 5 ).....................14

General Building Contractors Ass'n v. Pennsylvania,
458 U.S. 375 (1982)............................................ 3, 6, 11, 16

Gibson v. Mississippi, 162 U.S. 565 (1 8 9 6 ).......................  13

Girouard v. United States, 328 U.S. 61 (1 9 4 6 )........  16, 17

Hall v. United States, 92 U.S. 30 (1875)............................... 8

Helvering v. Hallock, 309 U.S. 106 (1946)................. 14, 16

Hurd v. Hodge, 334 U.S. 24 (1 9 4 8 )........................................  13

Johnson v. Railroad Express Agency, 421 U.S. 454
(1975)...........................................................................................11

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968).......... 7

Jones v. United States, 366 U.S. 213 (1960)....................... 14

Monnell v. Dept, o f Social Services of the City of New
York, 436 U.S. 658 (1978)..................................................... 14

Neal v. Delaware, 103 U.S. 370 (1 8 8 0 )............................... 13

Runyon v. McCrary, 427 U.S. 160 (1976).......................passim

ii

TABLE OF AUTHORITIES
Page



Ill

TABLE OF AUTHORITIES-Continued
Page

Slaughter-House Cases, 83 U.S. 36 (1873)............................. 1

Stanley v. Georgia, 394 U.S. 557 (1969).............................  12

State of Louisiana v. Mayor and Administrator of City
of New Orleans, 109 U.S. 285 (1 8 8 3 )............................... 9

Strauder v. West Virginia, 100 U.S. 303 (1 8 7 9 )..............  13

United Steelworkers v. Weber, 443 U.S. 193 (1979)........  12

Virginia v. Rives, 100 U.S. 313 (1 8 7 9 ) ............................... 13

Statutes and Legislative M aterial 

Civil Rights Act of 1866
42 U.S.C. § 1981.............................................................passim

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

Civil Rights Act of 1875, 18 Stat. 335 ..................... 10, 11

Cong. Globe, 39th Cong., 1st Sess. (1866)........  6, 7, 8, 9

Report on the Condition of the South, S. Exec Doc.
No. 2, 39th Cong., 1st Sess. (1866)...........................  4, 5

Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq ...........................................................11/ 13, 14

U.S. Const., art. I, § 1 0 .......................................................... 12

Other Authorities

Avins, The Civil Rights Act 1866, The Civil Rights 
Bill of 1966, and the Right to Buy Property, 405 
Cal. L. Rev. 274 (1967)........................................................ 10

C. Bolick, Changing Course: Civil Rights at the
Crossroads (1988)..............................................................  5, 17



IV

C. Fairman, The History of the Supreme Court of the
United States (1971).......................................................... 5, 6

Frankfurter, Some Reflections on the Reading of Stat­
utes, 47 Colum. L. Rev. (1 9 4 7 ) ..........................................3

J. McPherson, The Struggle for Equality (1964).................4

Note, Section 1981 and Private Groups: The Right to 
Discriminate Versus Freedom From Discrimination,
84 Yale L. J. 1441 (1975).................................................... 15

R. Higgs, Competition and Coercion, 37-61 (1977)............ 4

Roback, Southern Labor Law in the Jim Crow Era: 
Exploitative or Competitive, 51 U. Chi. L. Rev 
1161 (1984)...........................................................................  4, 5

B. Schlei and P. Grossman, Employment Discrimina­
tion Law (2d ed. 1983)........................................................  14

G. Stephenson, Race Distinctions in American Law
(1910)..................................................................................... 5, 6

TABLE OF AUTHORITIES-Continued
Page



No. 87-107
------- ♦-------

In The

Supreme Court of the United States
October Term, 1987
---------------♦---------------

BRENDA PATTERSON,

vs.
Petitioner,

McLEAN CREDIT UNION,

Respondent.
---------------♦--------------

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

---------------♦---------------

BRIEF OF THE CENTER FOR CIVIL RIGHTS 
AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

---------------♦---------------

INTEREST OF AMICUS CURIAE

The Landmark Legal Foundation Center for Civil 
Rights is a public interest law center dedicated to pro­
moting the core principles of civil rights: equality under 
law and fundamental individual rights.

A vital aspect of this mission is defending the integ­
rity of the civil rights laws. That requires challenging 
precedents in which the aims of civil rights laws have 
been frustrated, see, e.g., Slaughter-House Cases, 83 U.S. 36 
(1873) (holding economic liberty not within the privileges

1



2

or immunities clause of the 14th Amendment), as well as 
precedents, as here, that far exceed the laws' objectives. 
Fidelity to our nation's commonly shared principles as 
expressed in the civil rights laws is crucial to the ultimate 
sanctity of civil rights.

---------------4--------------

SUMMARY OF ARGUMENT

The integrity of our civil rights laws depends upon 
judicial construction faithful to the intent of the laws. In 
Runyon v. McCrary, 427 U.S. 160 (1976), the Court erro­
neously found in 42 U.S.C. § 1981 an intent to compel 
private individuals to enter into contracts against their 
will. This interpretation is inconsistent with the statute's 
plain language, with its legislative history, and with 
roughly contemporaneous judicial interpretations and 
subsequent actions by Congress. Viewed in its historical 
context, the law was plainly designed to eradicate state 
action that deprived blacks of contractual liberty and to 
invest in blacks the legal capacity to make and enforce 
contracts, not to reach purely private actions such as 
refusals to enter into contracts.

This was the understanding of this Court for nearly a 
century until Runyon. In Runyon, the Court embarked 
upon a course of activism that has forced it to decide 
issues that were never contem plated by the law 's 
framers. The Court may extricate itself from this extra­
judicial quagmire only by overruling Runyon. Rather than 
relying on Congress to take such action, the Court should 
correct its own error.



3

ARGUMENT

I. CONGRESS NEVER INTENDED § 1981 TO 
REACH PRIVATE CONDUCT, PARTICULARLY 
REFUSALS TO ENTER INTO CONTRACTS

Justice White was correct in his dissent in Runyon v. 
McCrary, 427 U.S. at 195 (White, J., dissenting), that the 
plain language of 42 U.S.C. § 1981 does not extend to 
private conduct, and also that the statute in its present 
form is based on the authority of the 14th Amendment, 
which controls only state action. Id. at 201-202. Either fact 
should have ended this Court's inquiry in Runyon, and 
would justify corrective action here in overruling Runyon.

Moreover, an examination of the circumstances sur­
rounding the adoption of the Civil Rights Act of 1866, to 
which not only the operative language of §§ 1981 and 
1982 but also the joint resolution that was later adopted 
as the 14th Amendment trace their origins, see General 
Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 
384 (1982), only reinforces this view. This legislative his­
tory leaves "no doubt" that the construction of § 1981 in 
Runyon "would have amazed the legislators who voted 
for it." Runyon, 427 U.S. at 189 (Stevens, J., concurring).

"[L jaw s are not abstract propositions. They are 
expressions of policy arising out of specific situations and 
addressed to the attainment of particular ends." Frank­
furter, Some Reflections on the Reading of Statutes, 47 
Colum. L. Rev. 527, 533 (1947). The circumstance motivat­
ing the enactment of the 1866 Act was the widespread 
adoption of state legislation that effectuated private 
efforts to perpetuate the subordinate status of blacks. The 
1866 act's aim was to eradicate such legislation, and in



4

the specific context of contracts, to invest blacks with the 
capacity to enforce their right to contract. Congress never 
intended to compel individuals to enter into contracts 
against their will. Given the substantial impact on indi­
vidual liberty that such a compulsion to contract entails, 
this Court should not lightly infer an intent by Congress 
to do so.

1. A. The post-Civil War South experienced tre­
mendous economic dislocation. Though southern leaders 
applied peer pressure and other tactics to encourage their 
fellow landowners to voluntarily lim it employment 
opportunities and restrict wages, "white employers vig­
orously competed with one another for black labor." 
Roback, Southern Labor Law in the Jim Crow Era: Exploit­
ative or Competitive?, 51 U. Chi. L. Rev. 1161, 1161 (1984); 
see also R. Higgs, Competition and Coercion 37-61 (1977). 
Pro-slavery philosopher George Fitzhugh warned his fel­
low southerners, "We must have a black code"; not to 
restore "slavery such as that which has been recently 
abolished," but to implement "some sort of subordination 
of the inferior race that will compel them to labor." J. 
McPherson, The Struggle for Equality 302 (1964). The black 
codes thus represented "attempts to enforce a labor-mar­
ket cartel among white employers that could not be 
enforced in any other way." Roback at 1162.

This process of effectuating private discrimination 
through the coercive apparatus of the state was chron­
icled by Maj. Gen. Carl Schurz in his Report on the 
Condition of the South, S. Exec. Doc. No. 2, 39th Cong., 
1st Sess. (1866). Schurz observed that in the economically 
ravaged South of 1865, "free negro labor being the only 
thing in immediate prospect, many ingenious heads set



5

about to solve the problem, how to make free labor 
compulsory by permanent regulations." Id. at 22. Schurz 
reported a number of local laws designed to keep blacks 
subservient, id. at 23-24, and he warned that "although 
the freeman is no longer considered the property of the 
individual master, he is considered the slave of society, 
and all independent state legislation will share the ten­
dency to make him such." Id. at 45.

As Schurz predicted, several southern states passed 
laws restricting the competitive labor market prior to the 
1866 Civil Rights Act. A number of states in 1865 and 
early 1866 passed "enticement" laws, making it a crime 
for one employer to try to hire a laborer away from 
another. Roback at 1166. Six states also passed vagrancy 
statutes prior to the 1888 Act, making it unlawful to be 
unemployed. 6 C. Fairman, The History of the Supreme 
Court of the United States 1185 n.191 (1971). An 1865 
Mississippi law, for instance, provided that any black 
laborer who quit during his contract term would forfeit a 
year's wages and could be arrested and returned to the 
employer at the laborer's expense. G. Stephenson, Race 
Distinctions in American Law 47 (1910). Other laws, such 
as oppressive licensing regulations, prevented freemen 
from applying in their own behalf the skills they had 
learned as slaves. C. Bolick, Changing Course: Civil Rights 
at the Crossroads 25 (1988). In sum, the black codes com­
prised an interwoven tapestry that restored as closely as 
practicable the feudal society that existed in the pre-Civil 
War South, and "were intended to accomplish what race 
prejudice could not do by itself." Roback at 1182.

Though the black codes were of recent vintage, the 
members of the 39th Congress were keenly aware of legal



6

restrictions on black economic opportunities, not only 
through reports from the South,1 but also in light of the 
fact that the black codes were modelled after laws in 
northern states governing free blacks that were passed in 
the 1840s and '50s. G. Stephenson at 36-38. Given that the 
black codes were what made private discriminations 
effective, it is well understandable that "the principal 
object of the legislation was to eradicate the Black 
Codes." General Building Contractors, 458 U.S. at 386.

Indeed, Rep. Samuel Shellabarger stressed that the 
"bill does not reach mere private wrongs, but only those 
done under color of State authority. . . .[I]ts whole force is 
expended in defeating an attempt, under State laws, to 
deprive races and the members thereof as such of the 
rights enumerated in this act." Cong. Globe, 39th Cong., 
1st Sess. 1293-1294. Rep. Burton Cook explained more 
fully the objective of the bill. He asked, "What is the 
situation of affairs for which we are called to legislate for 
four million human beings who have been set free from 
chattel slavery?" Id. at 1123-1124. In six southern legisla­
tures, he observed, laws had been passed that were "so 
malignant" and "subversive of their liberties" that mili­
tary commanders issued orders forbidding their enforce­
ment. Id. at 1124. Cook continued,

1 The Schurz report was before Congress while it was 
considering the 1866 Act, but the hearings of the Joint Commit­
tee on Reconstruction, upon which petitioner relies heavily, see 
Brief for Petitioner on Reargument at 27-40, were not com­
pleted until after the bill became law, and the committee's 
report was not prepared until even later. 6 C. Fairman at 1184.



7

The time when these men can be protected by the 
military power will cease. . . .Suppose . . . these 
States are restored to all the rights of sovereign States 
within this Union, and they carry out the same spirit 
they have already manifested toward these freed- 
men. . . .[TJhose states have already passed laws 
which would virtually reenslave them. . . .1 know of 
no way by which these men can be protected except 
it be by the action of Congress, either by passing this 
bill or by passing a constitutional amendment.

Id. at 1124. Likewise, Sen. James F. Wilson, noting that 
Gen. Grant had issued orders setting aside black codes, 
explained that "[t]his measure is called for because these 
reconstructed Legislatures, in defiance of the rights of the 
freedmen and the will of the nation . . . , have enacted 
laws nearly as iniquitous as the old slave codes that 
darkened the legislation of other days." Id. at 603. This 
legislative history demonstrates that Congress recognized 
that private discrimination was being effectuated through 
state action, hence requiring federal legislation aimed at 
removing this coercive tool from the hands of the 
oppressors. See generally Jones v. Alfred H. Mayer Co., 392 
U.S. 409, 450-472 (1968) (Harlan, J., dissenting).

B. If § 1981 is derived from the 1866 Act and thus 
enforces the 13th Amendment, as Petitioner contends, it 
must be addressed to removing a condition of the slavery 
that the amendment abolished. In the context of contract 
rights, the condition of slavery that § 1981 cures is the 
slaves' lack of legal capacity to contract -- a disability (like 
the others cured by § 1981) that is visited upon individ­
uals by state action, not by private action.

As Justice White observes in his Runyon dissent, 
"Congress' purpose . . . was solely to grant all persons



8

equal capacity to contract." Runyon, 427 U.S. at 205 
(White, ]., dissenting). The "inflexible rule of the law of 
African slavery" was that "the slave was incapable of 
entering into any contract." Hall v. United States, 92 U.S. 
27, 30 (1875). After the Civil War the right to contract was 
deemed a fundamental civil right, yet was being frus­
trated by the refusals of southern governments to enforce 
blacks' contractual rights and by state laws that inter­
fered with freedom of contract.

Rep. Martin Thayer, for instance, denounced the 
"tyranny of laws" by which a man "may be deprived of 
the ability to make a contract" -  "laws which, if permit­
ted to be enforced, would strike a fatal blow at the liberty 
of the freedman and render the constitutional amend­
ment of no force or effect whatever." Cong. Globe, 39th 
Cong., 1st Sess. 1152-53. The bill, he explained,

after extending these fundamental immunities of citi­
zenship to all classes of people in the United States, 
simply provides means for the enforcement of these 
rights. . . .How? . . .  It imposes duties upon the 
judicial tribunals of the country which require the 
enforcement of these rights. It provides for the 
administration of laws to protect these rights. It pro­
vides for the execution of laws to enforce them.

Id. at 1153. The 1866 Act, then, was intended to cure a 
defect of state law and administration of justice. As Rep. 
Shellabarger confirmed, "Its whole effect is not to confer 
or regulate rights, but to require that whatever of these 
enumerated rights and obligations are imposed by State 
laws shall be for and upon all citizens alike without 
distinctions based on race or former conditions in slav­
ery." Id. at 1293. Since the condition of slavery at issue 
here -  lack of legal capacity to make and enforce con­
tracts -  is a function of state law and not private action,



9

the 1886 Civil Rights Act is plainly limited to curing 
impediments and discriminations created by state action.

2. Even if § 1981 was intended to reach private acts 
against blacks,2 such as physical interference with the 
rights protected by the laws, it is quite another matter to 
apply the law to that species of private conduct at issue 
in Runyon, 427 U.S. at 170-171 -  a private individual's 
refusal to contract.

In construing the language of § 1981 that gives all 
citizens "the same right . . .  to make and enforce contracts 
. . . as is enjoyed by white citizens" (emphasis added), 
Justice White notes that "[wjhites had at the time . . .  no 
right to make a contract with an unwilling private per­
son, no matter what that person's motivation for refusing 
to contract." Id. at 194 (White, ]., dissenting). Indeed, the 
jurisprudence of the period held that the "very essence" 
of a contract is "[mjutual assent to its terms." State of 
Louisiana v. Mayor and Administrator of City of New 
Orleans, 109 U.S. 285, 288 (1883). The legislative history 
makes clear that Congress did not intend to supplant this 
vital aspect of contractual freedom. Rep. Cook, for 
instance, declared that "[w]e are not pointed to one single 
right now possessed of a single white man in this Gov­
ernment touched or impaired by the provisions of this 
bill." Cong. Globe, 39th Cong., 1st Sess. 1184.

2 Many of the acts recounted in petitioner's brief that are 
described as private, such as violence, extortion, and failure to 
comply with contractual terms, can only be effectuated 
through a race-conscious administration of justice, which is a 
form of state action.



10

This very distinction between capacity to enter into 
and enforce contracts, which Congress intended to extend 
to all persons, and the right to refuse to enter into con­
tracts, which Congress did not intend to disturb, formed 
the basis for this Court's decision in the Civil Rights Cases, 
109 U.S. 3 (1883), striking down provisions of the Civil 
Rights Acts of 1875.3 The Court observed that lack of 
capacity to enter into contracts was a badge of slavery 
redressable by congressional action pursuant to the 13th 
Amendment, but that the "denial to any person" of pub­
lic accomodations could not be redressed under the 
amendment. Id. at 21. As Justice Bradley explained, civil 
rights "cannot be impaired by the wrongful acts of indi­
viduals, unsupported by state authority in the shape of 
laws, customs or judicial or executive proceedings." Id. at 
17. Interferences with the right to contract or hold prop­
erty, the Court declared, are "simply a private wrong, or 
a crime of that individual; . . . but if not sanctioned in 
some way by the State, . . . his rights remain in full force, 
and may presumably be vindicated by resort to the laws 
of the State for redress." Id. at 17.

Failure of states to afford such vindication of rights 
was, as earlier noted, precisely the evil to be corrected by

3 The argument of amici Foner, et al., that the state/private 
action distinction was not recognized in late 19th century 
jurisprudence, see Brief of Foner, et al., at 11-13, is puzzling in 
light of the reliance on this distinction by the Court in this 1883 
decision. If Congress or the Court did not make more of this 
distinction, it is only because at that time "[i]t would have 
been a striking novelty in American jurisprudence . . .  to 
require a person to make a contract with someone he chooses 
not to contract with." Avins, The Civil Rights Act 1866, The Civil 
Rights Bill of 1966, and the Right to Buy Property, 40 S. Cal. L. 
Rev. 274, 306 (1967).



11

§ 1981. Petitioner presents no evidence whatsoever that 
Congress intended to compel individuals to enter into 
contracts against their will.

3. This interpretation is consistent not only with the 
statute's plain language, legislative history, and early 
interpretations by this Court, see e.g., Civil Rights Cases, 
supra, but also with subsequent congressional action. The 
14th Amendment, limited to state action, was ratified in 
1868; and Congress enacted § 1981 in its present form in 
1870 pursuant to that amendment. As this Court noted in 
General Building Contractors, 458 U.S. at 389-90, "In light 
of the close connection between [the 1870 Act] and the 
Amendment, it would be incongruous to construe the 
principal object of . . .  § 1981, in a manner markedly 
different from that of the Amendment itself."

Moreover, Congress subsequently passed the Civil 
Rights Act of 1875 (18 Stat. 335) guaranteeing equal 
access to public accom m odations. If Congress had 
intended earlier legislation to cover such instances, as 
Petitioner would have it, why would it soon thereafter 
pass new legislation covering the same subject?4

Finally, Congress passed sweeping civil rights legis­
lation in the 1960s. In particular, Title VII of the Civil 
R ights Act of 1964, 42 U.S.C. 2000e et seq., was 
"designed] as a comprehensive solution for the problem 
of invidious discrimination in employment." Johnson v.

4 In Runyon, 427 U.S. at 189 (Powell, J., concurring), Justice 
Powell suggests that § 1981 extends only to private "commerc­
ial relationship[s] offered generally or widely," but that is 
exactly what the subsequent Civil Rights Act of 1875 was 
designed to reach.



12

Railway Express Agency, 421 U.S. 454, 459 (1975). Peti­
tioner suggests § 1981 "fill[s] in gaps in the coverage of 
federal anti-discrimination statutes" and provides "supp­
lemental procedures and remedies," see Brief for Peti­
tioner on Reargument at 113, but it would have required 
amazing prescience for Congress in the 19th century to 
supplement and fill in the gaps of laws that would be 
passed nearly a century later. In reality, of course, exactly 
the converse was true: Congress in each instance was 
acting to supplement and fill in the gaps it perceived 
were left open by the legislation passed in 1866 and 1870. 
If additional coverage is necessary and desirable, that is a 
"task appropriate for the Legislature, not for the Judici­
ary." Runyon, 427 U.S. at 212 (White, J., dissenting).

4. When litigants ask this Court to apply a general 
statute in a way that would limit individual liberty, espe­
cially a right that is explicitly protected by the Constitu­
tion such as freedom of contract, see U.S. Const, art. I, 
§ 1 0 ,  this Court should exercise special caution and 
restraint. This is true even where the underlying private 
conduct may be repugnant. Cf. Stanley v. Georgia, 394 U.S. 
557, 565 (1969) ("Our whole constitutional heritage rebels 
at the thought of giving government the power to control 
men's minds"); United Steelworkers v. Weber, 443 U.S. 193 
(1979) (private racial preferences).

The tension inherent in petitioner's argument is that 
this Court should apply a law that was intended to 
expand contractual liberty to all Americans in a way that 
would limit such liberty for everyone. That such liberty is 
sometimes exercised in ways that society finds offensive 
does not give this Court license to expand a statute



13

beyond its intent. To do so requires this Court to substi­
tute its values for the values of society generally, as 
expressed in the nation's Constitution and statutes. Here 
no need exists for this Court to so apply § 1981, since 
Congress has drawn in Title VII a balance between such 
individual liberty interests as freedom of contract, free­
dom of association, and free exercise of religion on one 
hand, and the governm ent's interest in eradicating 
employment discrimination on the other. See. e.g., Title 
VII, § 701(b) (exempting Indian tribes from coverage); 
§§ 702 and 703(e)(2) (religious exemptions); § 701(b)(2) 
(exemption for bona fide membership clubs). This Court 
should refrain from applying a generally worded statute 
in a way that might disrupt this delicate accommodation 
of competing interests and that would further restrict 
individual liberty without a clear mandate from Congress 
to do so.

II. STARE DECISIS  SHOULD NOT BAR THIS 
COURT'S REEXAMINATION OF RUNYON  
UNDER THE UNUSUAL CIRCUMSTANCES 
OF THAT DECISION

This Court has reexamined its prior statutory inter­
pretations in a variety of contexts applicable to the pres­
ent situation. Statutory interpretations were overruled, 
for instance, where, as here, the decision departed from 
prior precedent5 and misapprehended legislative history,

5 Runyon itself was a significant departure from stare 
decisis, overruling a long line of cases in which the Court 
indicated § 1981 applied only to private action. See e.g., Hurd v. 
Hodge, 334 U.S. 24 (1948); Corrigan v. Buckley, 271 U.S. 323 
(1926); Gibson v. Mississippi, 162 U.S. 565 (1896); Civil Rights 
Cases, supra; Neal v. Delaware, 103 U.S. 370 (1880); Virginia v. 
Rives, 100 U.S. 313 (1879); Strauder v. West Virginia, 100 U.S. 303 
(1879).



14

Monnell v. Dept, of Social Services of the City o f New York, 
436 U.S. 658, 695-701 (1978), see also Erie Railroad Co. v. 
Tompkins, 304 U.S. 64, 72 (1938); and where the interpreta­
tion has proven "unworkable." See, e.g., Garcia v. San 
Antonio, 469 U.S. 528, 537 (1985). The Court has reversed 
its prior errors even after affirming them, see. e.g., Mon­
nell, 436 U.S. at 696 (earlier decision affirmed three 
times); Helvering v. Hallock, 309 U.S. 108, 123 (Roberts, J., 
dissenting) (1946) (earlier decision followed at least 50 
times); and even where Congress has re-enacted the stat­
ute at issue without altering the Court's interpretation. 
Id. Although properly declining to "lightly  overrule 
recent precedent," Garcia, 469 U.S. at 557, this Court has 
declared that "w e cannot evade our own responsibility 
for reconsidering in the light of further experience, the 
validity of distinctions which this Court has itself cre­
ated." Helvering, 309 U.S. at 122.

Runyon is such a substantial departure from prior 
precedent and legislative history -  a departure that 
requires the Court to engage in further activism as each 
successive issue never contemplated by the law's spon­
sors arises -  that this Court "should not continue to 
confound confusion." Jones v. United States, 366 U.S. 213, 
221 (1960), but should correct its error.6

6 Since § 1981 "reach[es] relatively few situations not also 
covered by Title VII," B. Schlei and P. Grossman, Employment 
Discrimination Law 668 (2d ed. 1983), the only persons who 
might rely on Runyon to their detriment in the employment 
context would be those who seek to evade the procedural or 
remedial limitations carefully framed by Congress in Title VII.



15

1. When this Court decided in Runyon that § 1981 
applies to private refusals to contract, it "amounted to the 
equivalent of new legislation enacting a broad, general 
purpose statu te prohibiting discrim ination against 
blacks." Note, Section 1981 and Private Groups: The Right to 
Discriminate Versus Freedom from Discrimination, 84 Yale L. 
J. 1441, 1476 (1975). As Justice White warned, once § 1981 
was loosed from its statutory moorings, the Court would 
"be called upon to balance sensitive policy considerations 
-  which have never been addressed by any Congress -  all 
under the guise of 'construing' a statute." Runyon, 427 
U.S. at 212 (White, J., dissenting).

Justice White's warning has proved prophetic. When­
ever a court departs from a statutory mandate, in essence 
creating a new statute, it forces the Court to confront 
issues with no certain guideposts; and the further it 
strays from legislative intent, the more it becomes a law 
maker rather than a law interpreter. That is the unfortu­
nate and improper role the Court assumed when it 
decided Runyon.

In the intervening years, this Court and other courts 
have been repeatedly called upon to decide how far 
§ 1981 regulates private conduct and how it interrelates 
with Title VII. For instance, does it supplant Title VII's 
private club exemption? See Runyon, 427 U.S. at 172 n.10. 
Does it extend to "personal contractual relationship^"? 
See id. at 188 (Powell, J., concurring). Does § 1981 provide 
a cause of action to federal employees? See Brown v. 
General Service Administration, 425 U.S. 820 (1976). Does it 
cover all aspects of the employment relationship, such as 
harassment by the employer, as petitioner asks this Court 
to hold? This confusion is exacerbated by decisions that 
appear to contradict one another. Compare, e.g., Runyon



16

(holding that § 1981 applies to private action) with Gen­
eral Building Contractors, supra (holding that § 1981 
requires a showing of intent since it enforces the 14th 
Amendment).

In Runyon, 427 U.S. at 188 (Powell, J., concurring), 
Justice Powell noted that no '"bright line' can be drawn 
that easily separates the types of contract offer within the 
reach of § 1981 from the type without." The source of the 
blurred lines is Runyon itself. In reality, Congress did 
supply a "bright line": it intended § 1981 to apply to state 
action only. Moreover, Congress subsequently enacted 
broad remedial legislation to deal specifically with pri­
vate discrimination in a wide variety of contexts. The 
many lines drawn by Congress in that legislation -  pro­
cedural, substantive, remedial -  resulted from extensive 
and careful deliberation that is entrusted by our Constitu­
tion to the legislative branch. This Court can remove 
itself from the self-perpetuating abyss of judicial lawmak­
ing only if it overrules Runyon.

2. Petitioner contends that the failure of Congress to 
en act le g is la t io n  re v e rs in g  Runyo n  am ou n ts to 
congressional adoption of the decision. Brief for Peti­
tioner on Reargument at 98-97. This Court, however, has 
repeatedly hesitated to "place on the shoulders of Con­
gress the burden of the Court's own error." Girouard v. 
United States, 328 U.S. 61, 70 (1946). Rather, the Court has 
advised " [i]t would require very persuasive circum­
stances enveloping Congressional silence to debar this 
Court from reexamining its own doctrines." Helvering, 
309 U.S. at 119. Thus, as Justice Brennan declared in Boys 
Markets v. Retail Clerks Union, Local 770, 398 U.S. 235, 242 
(1970), "the mere silence of Congress is not a sufficient 
reason for refusing to reconsider the decision." Indeed, 
the Court is free to correct its error even if "[mjany



17

efforts" were made unsuccessfully in Congress to change 
the decision. Girouard, 328 U.S. at 69.

The notion that Congress may conceivably cure a 
judicial misinterpretation certainly does not give the 
Court carte blanche authority to override the purpose of a 
statute or use it to "fill in the gaps" of remedial coverage. 
Given the dynamics of the political process and the pres­
ence of special interest groups that can effectively block 
much legislation, the Court is in the best position to 
police its own excesses.

This self-policing function is especially appropriate 
in civil rights cases. Our nation's two century-old quest 
to make good on its promise of civil rights rests on an 
often fragile popular consensus grounded in certain core 
ideals. The civil rights laws generally reflect the outer­
most limits of that consensus. America's commitment to 
civil rights depends in large measure on the judiciary's 
fidelity to those laws. See C. Bolick at 53-75. In Runyon, 
the Court departed in a major way from the intent of one 
such law. It should confess error and return to Congress 
its vital role as maker of the laws.

♦



18

CONCLUSION

For the foregoing reasons, we urge this Court to 
reconsider and overrule Runyon.

Respectfully submitted,
Clint Bolick 
Jerald L. H ill 
M ark J. Bredemeier 
Counsel for Amicus Curiae 
Landmark Legal Foundation 
Center for Civil Rights 
107 Second Street, N.E. 
Washington, D.C. 20002 
(202) 546-6045