By: Michael Foreman

Michael Foreman — Thu, 21 Feb 2008 18:03:22 +0000

Your analysis concludes too quickly there is “a strong nucleus of a potential majority” which could prevent claims of retaliation from being raised under Section 1981. While not clear from the discussion, that nucleus would include Justices Scalia, Kennedy and Thomas–the remaining dissenters from Jackson v Birmingham Board of Education. To get to a “potential majority” Chief Justice Roberts and Justice Alilo must join that view. Based upon the oral argument yesterday, I am not sure Justice Roberts will be willing to do this, given the historical significance of 1981 and how it has been paired in many cases with 1982. The SG made this point vividly yesterday that the Court would not only have to ignore Sullivan but also would be “turning its back on cases like” Tillman and Runyon. Indeed, even Justice Alito seemed to stuggling asking “do we have to apply the reasoning in the 1981 case because of the close relationship between the two provisions?” We need to keep in mind there is also a “strong nucleus” supportive of the idea Justice Breyer articulated yesterday “If they’re implying a right of action from the statute, why wouldn’t the courts also imply those rights of action necessary to make the statute effective?” Four of the current Justices, Breyer, Ginsburg, Stevens and Souter joined Justice O’Connor in this view in Jackson. I guess we will see what stare decisis is really stare decisis for Chief Justice Roberts and Justice Alito.

Comments on: Analysis: Another way to limit Sec. 1981

By: Michael Foreman