# Amicus Curiae Brief — Patterson v. McLean Credit Union

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 164

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1013%3A23. Public record. Not legal advice.