Held: In light of the difficulties posed by
petitioner's argument for a fundamental extension of liability
under 42 U.S.C. § 1981, this case is restored to the calendar for
reargument and the parties are requested to brief and argue the
question whether the interpretation of § 1981 adopted by this Court
in
Runyon v. McCrary, 427 U. S. 160,
should be reconsidered.
Restored to calendar for reargument.
PER CURIAM.
This case is restored to the calendar for reargument. The
parties are requested to brief and argue the following
question:
"Whether or not the interpretation of 42 U.S.C. § 1981 adopted
by this Court in
Runyon v. McCrary, 427 U. S.
160 (1976), should be reconsidered?"
One might think from the dissents of our colleagues from the
above order that our decision to hear argument as to whether the
decision in
Runyon v. McCrary, 427 U.
S. 160 (1976), should be reconsidered is a "first" in
the history of the Court. One would also think from the language of
the dissents that we have decided today to overrule
Runyon v.
McCrary. We have of course done no such thing, but have
decided, in light of the difficulties posed by petitioner's
argument for a fundamental extension of liability under 42 U.S.C. §
1981, to consider
whether Runyon should be overruled. It
is surely no affront to settled jurisprudence to request argument
on whether a particular precedent should be modified or
overruled.
Three Terms ago, for example, we requested the parties to
reargue the validity of our decision in
National League of
Cities v. Usery, 426 U. S. 833
(1976).
Garcia v. San Antonio
Page 485 U. S.
618
Metropolitan Transit Authority, 468 U.S. 1213 (1984)
(ordering reargument),
469 U. S. 528
(1985) (decision). Two Terms before that, we requested the parties
to reargue and brief the question whether the Fourth Amendment
exclusionary rule should apply where the evidence was obtained
reasonably and in good faith.
Illinois v. Gates,
459 U. S. 1028
(1982) (ordering reargument),
462 U. S. 213
(1983) (decision). In 1975, we ordered the parties in
Alfred
Dunhill of London, Inc. v. Republic of Cuba, 422 U.S. 1005
(1975) (ordering reargument),
425 U. S. 682
(1976) (decision), to address whether we should reconsider our
holding in
Banco Nacional de Cuba v. Sabbatino,
376 U. S. 398,
376 U. S. 439
(1964), which had reaffirmed the Court's adherence to the "act of
state" doctrine. And in
Benton v. Maryland, 393 U.S. 994
(1968) (ordering reargument), 395 U.S.
395 U. S. 784
(1969) (decision), the Court requested reargument on the question
whether the "concurrent sentence doctrine" had continuing
validity.
In addition, we have explicitly overruled statutory precedents
in a host of cases.
See, e.g., Monell v. New York City Dept. of
Social Services, 436 U. S. 658
(1978),
overruling Monroe v. Pape, 365 U.
S. 167 (1961);
Continental T.V., Inc. v. GTE
Sylvania Inc., 433 U. S. 36
(1977),
overruling United States v. Arnold, Schwinn &
Co., 388 U. S. 365
(1967);
Machinists v. Wisconsin Employment Relations
Comm'n, 427 U. S. 132
(1976),
overruling Auto Workers v. Wisconsin Employment
Relations Bd., 336 U. S. 245
(1949);
Braden v. 30th Judicial Circuit Court of Kentucky,
410 U. S. 484
(1973),
overruling Ahrens v. Clark, 335 U.
S. 188 (1948);
Andrews v. Louisville & Nashville
R. Co., 406 U. S. 320
(1972),
overruling Moore v. Illinois Central R. Co.,
312 U. S. 630
(1941);
Boys Markets, Inc. v. Retail Clerks, 398 U.
S. 235 (1970),
overruling Sinclair Refining Co. v.
Atkinson, 370 U. S. 195
(1962);
Peyton v. Rowe, 391 U. S. 54
(1968),
overruling McNally v. Hill, 293 U.
S. 131 (1934). These actions do not mean that the Court
has been insensitive to considerations of
stare decisis,
but only that we recognize it as "
a principle of
Page 485 U. S.
619
policy, and not a mechanical formula,'" Boys Markets,
supra, at 398 U. S. 241
(quoting Helvering v. Hallock, 309 U.
S. 106, 309 U. S. 119
(1940) (Frankfurter, J.)).
Both of the dissents intimate that the statutory question
involved in
Runyon v. McCrary should not be subject to the
same principles of
stare decisis as other decisions
because it benefited civil rights plaintiffs by expanding liability
under the statute. We do not believe that the Court may recognize
any such exception to the abiding rule that it treat all litigants
equally: that is, that the claim of any litigant for the
application of a rule to its case should not be influenced by the
Court's view of the worthiness of the litigant in terms of
extralegal criteria. We think this is what Congress meant when it
required each Justice or judge of the United States to swear to
"administer justice without respect to persons, and do equal right
to the poor and to the rich. . . ." 28 U.S.C. § 453.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE STEVENS join, dissenting.
The Court today asks the parties to rebrief and reargue this
case, focusing not on some neglected subtlety of the issues
presented for review or on any overlooked jurisdictional detail,
but on a question not presented: Whether the Court should
reconsider its 7-2 opinion (WHITE and REHNQUIST, JJ., dissenting)
in
Runyon v. McCrary, 427 U. S. 160
(1976). The Court's determination now to reach out to reconsider
that prior decision and everything that has been built upon it, is
neither restrained, nor judicious, nor consistent with the accepted
doctrine of
stare decisis. See, e.g., Vasquez v.
Hillery, 474 U. S. 254,
474 U. S. 266
(1986) ("[T]he careful observer will discern that any detours from
the straight path of
stare decisis in our past have
occurred for articulable reasons, and only when the Court has felt
obliged
to bring its opinions into agreement with experience
and with facts newly ascertained,'" quoting Burnet v. Coronado
Oil & Gas Co., 285 U. S. 393,
285 U. S. 412
(1932) (Brandeis, J., dissenting)).
Page 485 U. S. 620
Twelve years ago, consistently with our prior decisions in
Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968);
Tillman v. Wheaton-Haven Recreation
Assn., Inc., 410 U. S. 431
(1973); and
Johnson v. Railway Express Agency, Inc.,
421 U. S. 454
(1975), we observed that it is "well established" that 42 U.S.C. §
1981 "prohibits racial discrimination in the making and enforcement
of private contracts."
Runyon v. McCrary, 427 U.S. at
427 U. S. 168.
We reaffirmed our reading of the legislative history and language
of the statute as reaching private acts of racial discrimination,
and emphasized that, in the years since
Jones, Congress
specifically had considered and rejected legislation to override
our interpretation of the Civil Rights Act of 1866, 14 Stat. 27, on
which § 1981 is based. 427 U.S. at
427 U. S. 174,
and n. 11. Writing for the Court, Justice Stewart noted:
"There could hardly be a clearer indication of congressional
agreement with the view that § 1981
does reach private
acts of racial discrimination. . . . In these circumstances, there
is no basis for deviating from the well-settled principles of
stare decisis applicable to this Court's construction of
federal statutes."
Id. at
427 U. S.
174-175 (emphasis in original).
See also id. at
186-187 (Powell, J., concurring);
id. at
427 U. S.
189-192 (STEVENS, J., concurring);
Illinois Brick
Co. v. Illinois, 431 U. S. 720,
431 U. S. 736
(1977) ("[W]e must bear in mind that considerations of
stare
decisis weigh heavily in the area of statutory construction,
where Congress is free to change this Court's interpretation of its
legislation" (WHITE, J., writing for the Court)).
We continually have endorsed, in the employment and other
contexts,
Runyon's interpretation that § 1981 reaches
private conduct.
See, e.g., Goodman v. Lukens Steel Co.,
482 U. S. 656
(1987);
Saint Francis College v. Al-Khazraji, 481 U.
S. 604 (1987);
General Building Contractors Assn.,
Inc. v. Pennsylvania, 458 U. S. 375
(1982).
See also Memphis
Page 485 U. S. 621
v. Greene, 451 U.
S. 100 (1981). Over 100 lower court opinions cite the
relevant portions of
Runyon and its progeny. The parties
in this case have not informed us of anything that suggests
Congress has reconsidered its position on this statutory matter in
light of
Runyon and subsequent cases. I see no reason
whatsoever for the Court deliberately to reach out in the manner it
does today.
Although it is probably true that most racial discrimination in
the employment context will continue to be redressable under other
statutes, it may be that racial discrimination in certain other
contexts is not actionable independently of § 1981. I am at a loss
to understand the motivation of five Members of this Court to
reconsider an interpretation of a civil rights statute that so
clearly reflects our society's earnest commitment to ending racial
discrimination, and in which Congress so evidently has acquiesced.
I can find no justification for the bare majority's apparent
eagerness to consider rewriting well-established law.
I dissent.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE BLACKMUN join, dissenting.
While I join JUSTICE BLACKMUN's dissenting opinion, I write
separately to emphasize those aspects of the Court's action today
that I believe render the order particularly ill-advised.
The Court's spontaneous decision to reexamine our holding in
Runyon v. McCrary, 427 U. S. 160
(1976), is certain to engender widespread concern in those segments
of our population that must rely on a federal rule of law as a
protection against invidious private discrimination. Although the
present case involves a claim of discrimination in the workplace,
an area of the law where there is substantial overlap between 42
U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 78
Stat. 253, 42 U.S.C. § 2000e
et seq., a reexamination of
the issue of statutory construction decided in
Runyon
implicates a much broader sphere of conduct.
Runyon
Page 485 U. S. 622
itself did not involve a claim of employment discrimination, but
the question "whether . . . 42 U.S.C. § 1981, prohibits private
schools from excluding qualified children solely because they are
Negroes." 427 U.S. at
427 U. S. 163.
The Court's order today will, by itself, have a deleterious effect
on the faith reposed by racial minorities in the continuing
stability of a rule of law that guarantees them the "same right" as
"white citizens."
* To recognize an
equality right -- a right that 12 years ago we thought "well
established" -- and then to declare unceremoniously that perhaps we
were wrong and had better reconsider our prior judgment, is to
replace what is ideally a sense of guaranteed right with the
uneasiness of unsecured privilege. Time alone will tell whether the
erosion in faith is unnecessarily precipitous, but, in the
meantime, some of the harm that will flow from today's order may
never be completely undone.
In addition to the impact of today's decision on the faith of
victims of racial discrimination in a stable construction of the
civil rights laws, the order must also have a detrimental and
enduring impact on the public's perception of the Court as an
impartial adjudicator of cases and controversies brought to us for
decision by lawyers representing adverse interests in contested
litigation. The parties have asked us to decide whether § 1981
encompasses
"a claim for racial discrimination in the terms and conditions
of employment, including a claim that petitioner was harassed
because of her race."
Pet. for Cert. i. Neither the parties nor the Solicitor General
have argued that
Runyon should be reconsidered.
Page 485 U. S. 623
As I have said before,
"the adversary process functions most effectively when we rely
on the initiative of lawyers, rather than the activism of judges,
to fashion the questions for review."
New Jersey v. T.L.0., 468 U. S. 1214,
1216 (1984) (dissenting from order directing reargument). If the
Court decides to cast itself adrift from the constraints imposed by
the adversary process and to fashion its own agenda, the
consequences for the Nation -- and for the future of this Court as
an institution -- will be even more serious than any temporary
encouragement of previously rejected forms of racial
discrimination. The Court has inflicted a serious -- and unwise --
wound upon itself today.
* Section 1981 provides:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit 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, penalties, taxes, licenses,
and exactions of every kind, and to no other."
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