Amicus Curiae Brief — Patterson v. McLean Credit Union

No. 87-107

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

BRENDA PATTERSON,

Py titione ,.

McLEAN CREDIT UNION,

Re spond nt.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE SUPPORTING PETITIONER

ROBERT MACCRATE *

President

American Bar Association

WILLIAM H. ALLEN

MITCHELL F.. DOLIN

750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5000

Attorneys for the American Bar

Association as Amicus Curiae

* Counsel of Record

June 1988

WILSON - Eres Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-107

BRENDA PATTERSON,

Petitioner,

Vv.

McLEAN CREDIT UNION,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

MOTION FOR LEAVE TO FILE AND

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE SUPPORTING PETITIONER

The American Bar Association hereby moves, pursuant

to Rule 36.3, for leave to file the attached brief amicus

curiae in support of petitioner’s position that Runyon v.

McCrary, 427 U.S. 160 (1976), not be overruled. While

consent to file this brief has been obtained from peti-

tioner, counsel for respondent has declined to grant con-

sent. Correspondence reflecting the parties’ respective

positions has been lodged with the Clerk.

The ABA is a voluntary national organization of law-

yers. Its more than 347,000 members come from every

state and territory and represent a broad cross-section

of the legal profession. The ABA’s interest in this case

flows from its opposition to racial discrimination and

its concern that the abandonment of such an important

and well-established Supreme Court precedent as Runyon

would be harmful to the legal system.

For many years the ABA has taken a strong position

opposing racial discrimination within its own organiza-

tion, within other institutions of the legal system, and

in society at large.' Effective legal remedies play a sig-

nificant role in eradicating racial discrimination. Section

1981 of Title 42 of the United States Code is an im-

portant—and, in many instances, the exclusive or super-

ior—remedy for victims of private racial discrimination

in the making and enforcement of contracts.

Moreover, the ABA is concerned for its lawyer

members and their clients about the overruling by this

Court of one of its considered decisions construing a con-

gressional enactment. The legal profession and the

clients it serves share an important stake in the proper

application of the doctrine of stare decisis. In advis-

ing clients and formulating litigation strategy, law-

yers assume that this Court’s interpretations of fed-

eral statutes are binding and, except in extraordinary

1 See American Bar Association, Policy and Procedures Handbook

126 (1987) (describing August 1965 resolution on ABA anti-

discrimination policy); American Bar Association Report No. 23

(February 1972) (resolution condemning discriminatory hiring

practices within the legal profession); American Bar Association

Report No. 124 (February 1980) (resolution supporting legislation

prohibiting housing discrimination) ; American Bar Association Re-

port No. 120 (August 1984) (resolution declaring it inappropriate

for judges to belong to discriminatory organizations); American

Bar Association Report No. 120 (August 1986) (resolution opposing

discrimination in judicial selection ).

2 See generally 1 Kent, Commentaries on American Law *445

(1826) (“It is by the notoriety of such rules [of binding precedent |

that professional men can give safe advice to those who consult

them ... .”); see also 1 Hart & Sacks, The Legal Process 587

(tent. ed. 1958).

qe

circumstances, enduring. When this Court suddenly

abandons its statutory precedents, legitimate expectations

based on legal advice are disturbed and public trust in

the profession and our legal system is shaken. The ABA

has an interest in the Court not overruling statutory

precedents absent the most compelling reasons, none of

which is present in this case.

As the largest membership organization of lawyers in

this country, the ABA brings to this case a perspective

that is broader than and different from that of petitioner.

The ABA believes that the attached brief conveys that

perspective in a manner that would be of assistance to

this Court. Accordingly, the ABA respectfully seeks the

Court’s leave to file the attached brief supporting

petitioner.

Respectfully submitted,

ROBERT MACCRATE

President

American Bar Association

WILLIAM H. ALLEN

MITCHELL F.. DOLIN

750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5000

Attorneys for the American Bar

Association as Amicus Curiae

June 1988

QUESTION PRESENTED

This brief for the American Bar Association as amicus

curiae deals only with the question that the Court in its

order of April 25, 1988, asked the parties to address on

reargument: Whether the interpretation of 42 U.S.C.

§ 1981 adopted by this Court in Runyon v. McCrary, 427

U.S. 160 (1976), should be reconsidered.

(i)

TABLE OF CONTENTS

Page

INTEREST OF AMICUS CURIAE -2...--c.cc.0-cssec0cse000e- 1

SUMMARY OF ARGUMENT ..ooo--cceclcecccsee-cveessoeeevsveeee 1

a i i ita 2

I. RUNYON CONFIRMED A PRINCIPLE OF

RACIAL JUSTICE ALREADY WELL ESTAB-

LISHED AND PLACED IT BEYOND QUES-

pe 2

Il. THE VALUES UNDERLYING THE DOC-

TRINE OF STARE DECISIS STRONGLY

MILITATE AGAINST RECONSIDERATION

ee IE sreicineistinnieviscsiavcesees cuepensidenmecianaannhion 5

COI ceresecnccnccreevencssessonsecssccsesmacencscserecnsensenecnannesanes 12

(iii)

iv

TABLE OF AUTHORITIES

Cases Page

|

Akron v. Akron Center for Reproductive Health,

462 U.S. 416 (1982) _....... e+ ae eo ee OT 6

Arizona Vv. Rumsey, 467 U.S. 203 (1984) ................. 7,8

Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th

EE een ae 4

Brown v. Allen, 344 U.S. 443 (1953) -..................... 7

Brown v. Board of Education, 347 U.S. 483

SUITED :cc.nicchessuscubeennscnripsiniesbnennnisttmuasindiddasssiatahnbmmicuamnsainnts 8,9

Brown vy. Gaston County Dyeing Machine Co.,

457 F.2d 1377 (4th Cir.), cert. denied, 409 US.

SEE: CED cn icitiecesectnssinitntenennesitimninenitiiiaseiidibtananatetamenien 4

Busic v. United States, 446 U.S. 398 (1980) -....... 8

Copperweld Corp. v. Independence Tube Corp.,

gk SES en someercnanres 10

Dobbins v. Local 212, 292 F. Supp. 412 (S.D. Ohio

SITE ictearihtnssnisiatisianisaiecsissabiasindsidgisaehiudaninstiapiapennenninneeaienies 4

Flood v. Kuhn, 407 U.S. 258 (1972) .................-------- 9

Garcia v. San Antonio Transit Authority, 469 U.S.

I a eeeibeniineinn 7,9

General Building Contractors Ass’n Vv. Pennsyl-

vania, 4568 U.S. 375 (1962) .................----200c0---eeee-- 5

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)... 8

Johnson V. Railway Express Agency, 421 U.S. 454

TUTTI -scciniesetbicediindsemstisenmedanisenniidapasdiabetineninmnsiamentanl 3

Jones v. Alfred H. Mayer Co., 392 U.S. 409

SETI nti2)cciepennennestiiatietaitnenininaaaliatatabmiiiteaniaunbienticiaienes 3,4

Kentucky v. Dennison, 24 How. 66 (1861).............. 9

Monell v. New York City Dept. of Social Services,

KL eer 8

Monroe Vv. Pape, 365 U.S. 167 (1961) -...................... 8,9

Moragne vy. States Marine Lines, 398 U.S. 375

latte acral naam adiaaanninciin 7

National League of Cities v. Usery, 426 U.S. 833

TEI ae aE a TO 9

NLRB v. Longshoremen, 473 U.S. 61 (1985) -....... 8

Oklahoma City v. Tuttle, 471 U.S. 808 (1985)... 11

Patsy v. Board of Regents, 457 U.S. 496 (1982).. 10

Plessy v. Ferguson, 163 U.S. 537 (1896) _........ ileal 8

Vv

TABLE OF AUTHORITIES—Continued

Page

Poilock v. Farmers’ Loan & Trust Co., 157 US.

a i ol 7

Puerto Rico v. Brandsted, 107 S. Ct. 2802 (1987)... 9

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

Saint Francis College v. Al-Khazraji, 107 S. Ct.

SIE ITED scictehincsiechsimeiieiimeiiibdiahiinabignaditelseipabiasinabehinpiennn 5

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th

Cir. 1970), cert. denied, 401 U.S. 948 (1971)-_.. 4

Shaare Tefila Congregation v. Cobb, 107 S. Ct. 2019

RIES IE SPOS A er 5

Square D Co. v. Niagara Frontier Tariff Bureau,

Ef EE een 8

Stebbins v. Continental Ins. Cos., 442 F.2d 843

Ra EEE ELE ve eee eee RTO 4

Swift & Co. v. Wickham, 382 U.S. 111 (1965)... 8

Thomas Vv. Washington Gas Lighi Co., 448 U.S.

I a le 7

Tillman Vv. Wheaton-Haven Recreation Ass’n, 410

Se: Se Se aiescinichsschiensiniecieensntiieanieamabinesiemnevmmnnnes 3

United States v. Mason, 412 U.S. 391 (1973) -_...... 11

Vasquez V. Hillery, 474 U.S. 254 (1986) -............... 7

Waters v. Wisconsin Steel Works, 427 F.2d 476

(7th Cir.), cert. denied, 400 U.S. 911 (1970)... 4

Welch v. Texas Dep’t\of Highways and Public

Transportation, 107 S. Ct. 2941 (1987) _....... —_ 6

Young V. ITT, 438 F.2d 757 (3d Cir. 1971) —........... 4

Statutes and Legislative Material

Civil Rights Act of 1866

i cctienctiacionil ae Ae passim

ETT A 3

118 Cong. Rec., Parts 3 & 4 (1972) 0... 4

Other Authorities

Cardozo, The Nature of the Judicial Process

SI ok niall dient biniaiii ual enenamtrigsionesnemnemmentenneanonen 7,9

The Federalist (Cooke ed. 1961) . 6

Harbaugh, Lawyer’s Lawyer (ed. 1978) -............... 11

vi

TABLE OF AUTHORITIES—Continued

Page

Jackson, Decisional Law and Stare Decisis, 30

A.B.A.J. 334 (1944) 7

Levi, An Introduction to Legal Reasoning, 15 U.

Chi. L. Rev. 501 (1948) 000 8

Lile, Some Views on the Role of Stare Decisis, 4

Va. L. Rev. 95 (1916) _.... 6

IN THE

Supreme Court of the Wunited States

OCTOBER TERM, 1987

No. 87-107

BRENDA PATTERSON,

- Petitioner,

MCLEAN CREDIT UNION,

Respondent.

On Writ of Certiorari to the

United States Couri of Appeals for the Fourth Circuit

BRIEF OF THE AMERICAN BAR ASSOCIATION

AS AMICUS CURIAE SUPPORTING PETITIONER

This brief is submitted on behalf of the American Bar

Association as amicus curiae in support of the petitioner.

INTEREST OF AMICUS CURIAE

The interest of the American Bar Association is set

forth in the foregoing Motion for Leave to File.

SUMMARY OF ARGUMENT

For two decades, our Nation’s dedication to racial jus-

tice has been reflected in and served by the application

of 42 U.S.C. § 1981 to prohibit private acts of discrimi-

nation in the making and enforcement of contracts. The

three branches of the federal government, the legal pro

fession, and those who are directly affected have oper-

2

ated on this understanding of the statute and ordered

their affairs accordingly. The Court’s decision in Run-

yon V. McCrary, 427 U.S. 160 (1976), rendered in the

case of black children denied admission to private schools

on account of their race, simply confirmed the settled

fact that Section 1981 reaches private conduct. The is-

sue was correctly resolved then. It should not be re-

opened now.

Independent of the fact that Runyon correctly con-

strued Section 1981, the doctrine of stare decisis strongly

militates against a retreat from that decision. The rule

confirmed in Runyon derived direct support from earlier

decisions of this Court, embraced a construction of Sec-

tion 1981 already unanimously adopted by the lower

courts, and occurred subsequent to congressional action

endorsing the Court’s interpretation. At the time Run-

yon was decided, the Court heard the relevant legal and

factual arguments on both sides of the question, includ-

ing a dissenting view cogently expressed by Justice

White. And events since 1976 do not justify abandon-

ment of this precedent, which has been widely relied upon

and which advances important anti-discrimination poli-

cies that have gained ever more widespread acceptance

in our society.

ARGUMENT

I. RUNYON CONFIRMED A PRINCIPLE OF RACIAL

JUSTICE ALREADY WELL ESTABLISHED AND

PLACED IT BEYOND QUESTION.

Section 1981 guarantees to “[a]ll persons. . . the

same right ... to make and enforce contracts ... as

is enjoyed by white citizens.” By its terms, the statute

condemns racial discrimination without regard to whether

the person guilty of such discrimination is a government

official or a private citizen. It has been uniformly con-

strued for the past twenty years to be thus universal

in its condemnation of racial discrimination. In the

3

process, Section 1981 has become a vital, everyday part

of civil rights jurisprudence and practice, consistently

understood as reaching all forms of racism in the making

and enforcement of contracts.

Section 1981 provides an effective and important rem-

edy for acts of racial discrimination, both in instances

where no other remedy is available and in others where

the remedies available are either inadequate to provide re-

dress or insufficient to serve as reliable deterrents. No other

federal statute addresses private school discrimination,

the very matter before the Court in Runyon. Numerous

types of private discrimination—by clubs, small em-

ployers, and others—are covered on the federal level

only by Section 1981. Even where there is some overlap

between Section 1981 and other remedies, the Section

1981 remedy is decidedly su ~ ior in various respects.

See pages 10-11, below.

This Court’s holding in Runyon, which itself rested on

precedent, decisively vindicated the enacting Congress’

commitment to racial justice and was thought once and for

all to have removed any lingering doubt that Section 1981

prohibits private acts of discrimination. Indeed, the

Court opened its discussion of the law in Runyon with

the observation that “[i]t is now well established that

. . » § 1981 prohibits racial discrimination in the mak-

ing and enforcement of private contracts.” 427 U.S. at

168. The Court cited for this proposition Johnson Vv.

Railway Express Agency, 421 U.S. 454, 459-60 (1975),

and Tillman v. Wheaton-Haven Recreation Ass’n, 410

U.S. 431, 439-40 (1973), which dealt with Section 1981,

and Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441

n.78 (1968), the foundation case, which dealt with the

companion provision, 42 U.S.C. § 1982, but clearly stated

that Section 1981 as well as Section 1982 reached private

conduct.

Runyon thus confirmed an interpretation of Section

1981 that had already received the Court’s imprimatur

and had been applied for several years in the federal

4

courts.’ Well before 1976, the Executive also affirma-

tively recognized that this construction of the law was both

correct and well established.? Indeed, in its amicus curiae

brief in the Runyon case, the United States said that

“it is now settled that Section 1981 prohibits all racial

discrimination, private as well as public, interfering

with the making and enforcement of contracts.” Brief

for the United States as Amicus Curiae at 13, Runyon

v. McCrary.

More important, Congress, whose enactment this Court

interpreted in Runyon and in the “line of authority” *

that preceded it, was aware at least as early as 1972

that Section 1981 was being applied to private-sector dis-

crimination in employment and other areas. When legis-

lation was introduced in the Senate to vitiate this appli-

cation through a partial repeal of Section 1981, it was

twice rejected. 118 Cong. Rec. 3372-73, 3965 (Feb. 9 &

15, 1972). Congressional endorsement of this Court’s

understanding of Section 1981 and active congressional

1 The district courts interpreted Section 1981 as covering private

conduct as early as 1968 and were swiftly followed by an unbroken

line of appellate rulings reaching the same result. See Dobbins v.

Local 212, 292 F. Supp. 413, 442 (S.D. Ohio 1968); Waters v.

Wisconsin Steel Works, 427 F.2d 476, 482-83 (7th Cir.), cert. denied,

400 U.S. 911 (1970); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097,

1099 (5th Cir. 1970), cert. denied, 401 U.S. 948 (1971); Young v.

ITT, 438 F.2d 757, 759-60 (3d Cir. 1971); Brown v. Gaston County

Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), cert. denied, 409

U.S. 982 (1972); Brady v. Bristol-Meyers, Inc., 459 F.2d 621, 623

(8th Cir. 1972).

2 See Stebbins v. Continental Ins. Cos., 442 F.2d 843, 846-47

(D.C. Cir. 1971) (“The [Equal Employment Opportunity] Com-

mission argues that [Section 1981] creates a cause of action for

racial discrimination in private employment ... .”); ef. Brief for

the United States as Amicus Curiae at 8-9, Jones v. Alfred H.

Mayer Co. (“Nor do we believe there is any textual, historical, or

constitutional obstacle to applying [Section 1982] . . . to wholly

private action.” ).

3 427 U.S. at 189 (Stevens, J., concurring).

5

commitment to its judicial application underscore the ex-

tent to which the principle of Runyon was settled and

accepted even before its confirmation by that decision.

In the dozen years since this Court’s ruling in Runyon,

the express inclusion of discriminatory private conduct

within the prohibition of Section 1981 has been placed be-

yond the realm of debate. This is vividly illustrated by

the decision of the Court during the 1986 Term in Saint

Francis College v. Al-Khazraji, 107 S. Ct. 2022 (1987).

The Court did not question whether Section 1981 reached

private conduct but whether discrimination in _pri-

vate employment against an Arab was racial discrimina-

tion within the meaning of Section 1981. The Court

unanimously held that it was, 107 S. Ct. at 2028, and

at the same time held that discrimination against Jews

was racial discrimination within the meaning of Section

1982, Shaare Tefila Congregation v. Cobb, 107 S. Ct.

2019, 2022 (1987). Similarly, the inclusion of private

conduct in Section 1981 was the agreed premise in Gen-

eral Building Contractors Ass’n v. Pennsylvania, 458

U.S. 375 (1982),* where the dissenting members of this

Court would have extended the statute still farther by

holding a private actor liable for unintended discrimina-

tion.

Decisions such as these have fortified the fact that Sec-

tion 1981 prohibits private discriminatory conduct. The

lower courts and the legal profession have faithfully fol-

lowed this Court’s clear mandate. The issue has long been

settled. It should not be unsettled at this late date.

Il. THE VALUES UNDERLYING THE DOCTRINE OF

STARE DECISIS STRONGLY MILITATE AGAINST

RECONSIDERATION OF RUNYON.

The fact that Section 1981 prohibits private acts of

discrimination in the making and enforcement of con-

tracts has been placed beyond dispute during the past

* See especially id. at 388.

6

twenty years. This correct understanding has been em-

braced or accepted by the three branches of the federal

government, the legal profession, and both the victims of

and participants in discriminatory practices. The ex-

pectations and reliance generated during this period

alone warrant adherence to the holding in Runyon V.

McCrary. To the extent that major changes in law and

society have occurred since Runyon, they have only con-

solidated the policy advanced in Runyon condemning all

forms of racial discrimination. No legal or social develop-

ment of the past several years could conceivably justify a

retreat from Runyon.

Stare decisis is, independent of any other consideration,

a compelling reason for not overruling Runyon. Stare

decisis, as this Court has observed, “is a doctrine that

demands respect in a society governed by the rule of law.”

Akron v. Akron Center for Reproductive Health, 462 U.S.

416, 420 (1982). Indeed, it has been said that “(t]he

rule of law depends in large part on adherence to the doc-

trine of stare decisis.” Welch v. Texas Dep't of High-

ways and Public Transportation, 107 S. Ct. 2941, 2948

(1987) (plurality opinion). Stare decisis protects the

integrity of the legal system by guaranteeing continuity

and predictability in the administration of justice. Be-

cause ours is a country dedicated to the rule of law, the

doctrine of stare decisis is “a natural evolution from the

very nature of our institutions.” Lile, Some Views on the

Role of Stare Decisis, 4 Va. L. Rev. 95, 97 (1916).

Stare decisis, like fealty to constitutional and statu-

tory text, is an essential safeguard against the unprin-

cipled exercise of judicial authority. As Hamilton wrote

in the Federalist, “{t]o avoid an arbitrary discretion

in the Courts, it is indispensable that they should be bound

down by strict rules and precedents.” The Federalist No.

78, at 529-30 (Cooke ed. 1961). The point was reiterated

by the first Justice White in a dissent ultimately vindi-

7

cated by the adoption of the Sixteenth Amendment.

He said that “[t]he fundamental conception of a ju-

dicial body is that of one hedged about by precedents

which are binding on the court without regard to the per-

sonality of its members.” Pollock v. Farmers’ Loan &

Trust Co., 157 U.S. 429, 652 (1895) (dissenting opinion).

The doctrine of stare decisis thus “permits society to

presume that bedrock principles are founded in law

rather than in the proclivities of individuals.” Vasquez v.

Hillery, 474 U.S. 254, 265 (1986).° Of course, precedent

is not a straitjacket. But, as Justice Robert Jackson

cautioned, there must be limits on the role judges play

in changing the law of a democratic society. ‘Modera-

tion in change is all that makes judicial participation in

the evolution of law tolerable.” Jackson, Decisional Law

and Stare Decisis, 30 A.B.A.J. 334, 334 (1944).

Respect for precedent establishes the Court as the

guardian of the laws, while disrespect for precede at

undermines regard for the Court itself. In his charac-

teristically understated way, Justice Powell put it best:

“The stability of judicial decision, and with it respect for

the authority of this Court, are not served by the pre-

cipitate overruling of . .. precedents.” Garcia v. San

Antonio Transit Authority, 469 U.S. 528, 559 (1985)

(dissenting opinion).

As a consequence of its centrality in our legal system,

stare decisis imposes a “severe burden on the litigant

who asks [the Court] to disavow one of [its] precedents.”

Thomas Vv. Washington Gas Light Co., 448 U.S. 261, 272

(1980). “{A]jny departure from the doctrine of stare

5 Accord Moragne v. States Marine Lines, 398 U.S. 375, 403

(1970) (stressing “the necessity of maintaining public faith in the

judiciary as a source of impersonal and reasoned judgments”);

Brown v. Allen, 344 U.S. 443, 535 (1953) (Jackson, J., concurring)

(deference to precedent sustains confidence in judicial respect for

“impersonal rules of law”); Cardozo, The Nature of the Judicial

Process 112 (1921) (adherence to precedent ensures impartiality).

8

decisis demands special justification.” Arizona v. Rum-

sey, 467 U.S. 203, 212 (1984) ; Swift & Co. v. Wickham,

382 U.S. 111, 116 (1965).

It is familiar learning that stare decisis is least com-

manding in constitutional cases because there is no easy

alternative to overruling by which the Court’s constitu-

tional interpretations can be modified. Only the Court

could correct the error of Plessy v. Ferguson, 163 U.S. 537

(1896), and make the Fourteenth Amendment the instru-

ment of racial justice it was intended to be, as it did in

Brown Vv. Board of Education, 347 U.S. 483 (1954). Con-

gress could not. By contrast, the force of stare decisis is

greatest in cases involving st.*utory construction because

the lawmaking body is free to correct any error the Court

may have made.®

Stare decisis in the construction of statutes demands

specia' respect where, as here, Congress has embraced the

Court’s original holding. Justice Harlan’s explanation of

his concurrence in Monroe v. Pape, 365 U.S. 167 (1961),

has become a standard formulation of the heavy burden

borne by one asking the Court to overrule a precedent Con-

gress has approved.’ He spoke of both “the policy of stare

decisis, as it should be applied in matters of statutory

construction,” ard, “to a lesser extent, the indications of

congressional acceptance of this Court’s earlier interpre-

tation.” 365 U.S. at 192. He said that the two together

“require(d] that it appear beyond doubt” that the chal-

lenged precedents “misapprehended” the meaning of the

6 See Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S.

409, 429 n.34 (1986) (citing NLRB v. Longshoremen, 473 U.S. 61,

84 (1985), and Illinois Brick Co. v. Illinois, 431 U.S. 720, 736

(1977) ); Levi, An Introduction to Legal Reasoning, 15 U. Chi. L.

Rev. 501, 540 (1948) ; cf. Busic v. United States, 446 U.S. 398, 417-

18 (1980) (Rehnquist, J., dissenting) (“Were [the issue] demon-

strably a case of statutory construction, I could acquiesce to the

Court’s reading . . . in the interest of stare decisis.’’).

7 See Monell v. New York City Dept. of Social Services, 436 U.S.

658, 715 (1978) (Rehnquist, J., dissenting).

9

statute in issue “before a departure from what was

decided in those cases would be justified.” Jd. (emphasis

udded). The “indications of congressional acceptance”’

are as unmistakable in this case as are the demands,

apart from congressional ratification, of “the policy of

stare decisis.” Congress, as this Court will be told in

other briefs, ratified Runyon through subsequent legisla-

tion that built on an understanding that Section 1981

meant what Runyon said it meant and through explicit

rejection of proposed legislation that would have con-

tracted the reach of Section 1981. Particularly in these

circumstances, it would be appropriate to leave any modi-

fication to Congress.*

To be sure, as the listing of cases in the Court’s per

curiam opinion setting the case for reargument illustrates,

the Court has on occasion overruled its statutory prec-

edents. In the Court’s overruling decisions, many

made according to the less demanding standards for con-

stitutional cases, the extraordinary circumstances that

might justify the abandonment of precedent are identi-

fied. Precedent may be disregarded when the rule of

a case has proven unexpectedly difficult to apply; *® when

changed legal circumstances have created an internal

inconsistency between an important and ongoing legal

policy and an earlier, discredited legal regime; *® when

changed mores have rendered the earlier decision incom-

patible with social progress; '' or when new and unantic-

ipated considerations have emerged since the time of the

8 See Flood v. Kuhn, 407 U.S. 258, 284 (1972) (“If there is any

inconsistency or illogic in all this, it is an inconsistency and illogic

of long-standing that is to be remedied by the Congress and not

by this Court. ...”).

® See Garcia v. San Antonio Metropolitan Transit Authority, 469

U.S. 528, 539-547 (1985), overruling National League of Cities v.

Usery, 426 U.S. 833 (1976).

10 See Puerto Rico v. Brandsted, 107 S. Ct. 2802, 2809 (1987),

overruling Kentucky v. Dennison, 24 How. 66 (1861).

11 See Cardozo, The Nature of the Judicial Process 151-52 (1921);

see, e.g., Brown v. Board of Education, 347 U.S. 483 (1954).

10

initial decision, providing judges with unforeseen and

unforeseeable information.”

Runyon v. McCrary exemplifies a decision entitled to

stare decisis. The recognized exceptions to stare decisis

simply do not apply. ~The rule of Runyon was being

applied well before 1976 and it has been successfully

applied and extended since then. Runyon itself embodies

a policy of the highest order of importance, one that has

engaged our lawmakers more perhaps than any other in

recent years, the policy of extirpating racial discrimi-

nation. Changes in mores since Runyon have been in

exactly the anti-discrimination direction signaled by the

Court’s decision.

Finally, no unanticipated evidence or results have

emerged to alter the issues considered by the Court in

deciding Runyon. The factors that argued for and

against the Runyon interpretation of Section 1981 were

fully aired and considered at the time. The reasoned

opinion in Runyon was correct and should not be subject

to periodic revisitation.™

The reliance and expectations generated by this Court’s

decisions in Runyon and its antecedents also present a

compelling reason for leaving it undisturbed. Because the

remedies provided by Section 1981 exceed in scope the

remedies provided by other anti-discrimination laws, over-

ruling Runyon would work a forfeiture on many individ-

uals, including those who have relied upon their lawyers’

advice in situations where an alternative remedy or pro-

cedure was available. For example, a trial by jury is

guaranteed in an action for damages under Section 1981;

it is not available under Title VII of the Civil Rights

Act of 1964. Section 1981 confers on plaintiffs the right

12 See Copperweld Corp. v. Independence Tube Corp., 467 U.S.

752, 766 (1984).

13Cf. Patsy v. Board of Regents, 457 U.S. 496, 517 (1982)

(White, J., concurring) (“Whether or not this initially was a wise

choice, these decisions are stare decisis.’’).

11

to recover punitive damages; by contrast, Title VII

limits monetary relief to back pay. The longer stat-

ute of limitations and more favorable remedial regime

of Section 1981, together with fears of res judicata, make

it virtually certain that numerous clients, on their law-

yers’ auvice, will have forgone Title VII or state law

claims because of what was represented to be the avail-

ability of a Section 1981 remedy. Their legitimate ex-

pectations would be thwarted were Runyon to be over-

ruled. This Court has emphasized that adherence to

precedent is crucial when such reliance interests are at

stake: “[I]f the doctrine of stare decisis has any mean-

ing at all, it requires that people in their everyday affairs

be able to rely on our decisions and not be needlessly

penalized for such reliance.” United States v. Mason, 412

U.S. 391, 399-400 (1973); see also Oklahoma City v.

Tuttle, 471 U.S. 808, 818 n.5 (1985) (plurality opinion) .™*

The long-standing and well-considered principle of

racial justice confirmed in Runyon strongly suggests that

it should not be reconsidered. Any doubt in this regard,

however, should vanish when one considers the pattern

of congressional endorsement of the principle and the ex-

tent to which it has been relied upon. In light of the

manifest inapplicability of the exceptions to stare decisis,

Runyon should be left undisturbed.

14 While stare decisis should not be blindly applied, its unjustified

abandonment would impair lawyers’ ability to provide meaningful

advice. In earthy language, John W. Davis once suggested that

clients would substitute casting dice for consulting lawyers if their

expectations were dashed by a practice of overruling precedents.

Harbaugh, Lawyer’s Lawyer 416 (ed. 1978) (quoting 1942 letter to

Hartford Courant).

12

CONCLUSION

Runyon v. McCrary was correctly decided. The Court

should decline to reconsider it.

Respectfully submitted,

ROBERT MACCRATE

President

American Bar Association

WILLIAM H. ALLEN

MITCHELL F. DOLIN

750 North Lake Shore Drive

Chicago, Illinois 60611

(312) 988-5000

Attorneys for the American Bar

Association as Amicus Curiae

June 1988