I don’t really know of anyone (with the possible exception of defendants and their lawyers in particular cases) who thinks that it should be legal for someone to retaliate against an individual who seeks to enforce their federal civil rights.  Congress often expressly proscribes such conduct in modern civil rights (and other) statutes.  But sometimes it doesn’t.  And it didn’t do so in some of the seminal civil rights statutes passed in the wake of the Civil War.  Why not?  In all honesty, it is probably (at least with respect to modern statutes) because Congress didn’t think about it.  But that nonetheless leaves courts with a tricky question – do the statutes not mentioning retaliation nonetheless proscribe it?

The Court confronted that question in two cases decided yesterday: CBOCS v. Humphries, No. 06-1431, which construed the Civil War-era 42 U.S.C. § 1981, and Gomez-Perez v. Potter, No. 06-1321. which interpreted the federal-sector provision of the Age Discrimination in Employment Act, passed in 1974.  (Disclosure: I consulted with respondent’s counsel in CBOCS).

Because the decisions are closely related, I am going to discuss them together.  To keep the post manageable, however, I’ll start with an introduction to both cases and walk through CBOCS in this post.  Then I will finish the discussion of Gomez-Perez and a couple of general observations in a separate post.

I.  Introduction

There was a time when courts would have felt free to judicially imply an anti-retaliation right in order to make a statutory regime effective, in the same way that they implied private rights of actions and damages remedies.  But no more.  At the oral argument in CBOCS, Justice Scalia referred to those times as the “bad old days” and asked his former law clerk, Solicitor General Paul Clement, when those days ended; ever quick on his feet, Clement answered “when you got on the Court, Mr. Justice Scalia.”

Whatever the exact date, there is no question that the current Court has no appetite for openly inventing rights and implying remedies.  Indeed, in his opinion for the Court in Gomez-Perez case, Justice Alito rejected the argument that a prior case – Jackson v. City of Birmingham – had found an anti-retaliation right under Title IX only because it was construing a previously-implied private right action (i.e., one created back in the “bad old days”) and, therefore, had greater leeway to base its decision on its own policy views of what made sense.

So the right against retaliation under Section 1981 and the ADEA had to be found in the text of their respective statutes.  But the statutes themselves, in slightly different terms, address only discrimination, not retaliation per se.  The question in both cases thus became whether prohibiting discrimination on the basis of age or race should be read to include a prohibition against retaliating against those who complain about age or race discrimination.  The answer to that question, it turns out, was derived in both cases chiefly from prior decisions construing other antidiscrimination statutes, decisions that I will wager (and the defendant in CBOCS did wager its case on) that a majority of the present Court would have decided differently today.  Thus the critical importance of stare decisis in yesterday’s decisions.

The second axis of disagreement – which is responsible for the different line-ups in the two cases – was over what to make of the fact that Congress has expressly forbidden both discrimination and retaliation in related statutes.  The short answer, it turns out, is “not much.”

II.  Cracker Barrel and the Scope of Stare Decisis

In CBOCS, a black manager at a Cracker Barrel restaurant filed suit under Section 1981, alleging he was fired after complaining about discrimination against other black mid-level managers.  Section 1981, passed during Reconstruction, provides that “[a]ll persons within the jurisdiction of the United States shall have the same right to make and enforce contracts … as enjoyed by white citizens.”  CBOCS argued to the Court that this language prohibits adverse treatment of citizens on the basis of race but that retaliating against someone who has complained about discrimination is not race discrimination within the meaning of the Act.

Justice Breyer, writing for the Court, concluded otherwise, expressly basing the decision “in significant part upon principles of stare decisis.”  He explained that in Sullivan v. Little Hunting Park, Inc., 369 U.S. 229 (1969), the Court had construed the nearly identical language of the statute’s companion provision – Section 1981, which prohibits discrimination with respect to property rights – as prohibiting  retaliation.  In Sullivan, a white property owner was kicked out of his property association after complaining that the association wouldn’t allow a black person, who’d bought the plaintiff’s property, to use the association’s private park.  Justice Breyer acknowledged that this ruling wasn’t entirely clear at the time – there was an argument that Sullivan simply held that a white person has standing to raise the anti-discrimination rights of a black person.  But the Court had rejected that reading of Sullivan a couple terms ago in Jackson v. Birmingham Board of Education (2005).  And because Section 1981 and Section 1982 were passed at the same time (in fact, they are separate codifications of parts of the same provision of the Civil Rights Act of 1866) and directed at the same general object, the Court felt compelled to give the same construction to both provisions.

As Justice Thomas notes in dissent, the Court does little to defend its decision on textual grounds.   Indeed, Justice Breyer’s decision seems to go out of its way to explain that it is grounded on its adherence, under stare decisis, to the Court’s prior decisions construing similar text, as opposed to the Court’s own construction of the text of Section 1981 itself.

But what kind of stare decisis are we talking about here?  The Court is not simply adhering to a prior on-point decision, as it would had this case been about the scope of Section 1982.  Instead, the majority felt bound by the rationale of decisions construing closely-related statutes, unwilling to create the uncomfortable circumstance in which related statutes with similar texts are read quite differently, principally as a consequence of when in the Court’s history the issue came before it.

This is a tricky business.  As the Chief Justice noted at oral argument, it gives rise to a tension between the need to reach consistent results in closely-related cases and the desire to apply a consistent interpretive methodology across decisions.  “Under principles of stare decisis,” the Chief asked, “which body do we follow, the earlier case interpreting 1982 under the more freewheeling approach to statutory interpretation or this later body of law that says we’re not going to do that any more?”

At least in this case, the Chief Justice followed the route of consistent results.  As did Justice Alito, and, perhaps most surprisingly of all, Justice Kennedy, who joined the dissent in Jackson arguing that Sullivan, properly read, did not recognize a cause of action for retaliation under Section 1982.

They did so on the basis of a broad conception of stare decisis.  Answering the Chief Justice’s oral argument question, the seven-member majority explained that “even if we were to posit for argument’s sake that changes in interpretive approach take place from time to time, we could not agree that the existence of such a change would justify reexamination of well-established prior law.”

Justice Thomas could not disagree more.  His dissent, joined by Justice Scalia, begins “with the text of the statute,” and derides the majority for starting with the Court’s own prior decisions.  The implication seems to be that if the text of the statute is clear, resort to the Court’s prior decisions is inappropriate (like resort to legislative history?).  As for those prior decisions, unlike Justice Kennedy, Justice Thomas continues to insist that Jackson was wrongly decided and, therefore, an inappropriate basis for today’s decision.

At the same time, Justice Thomas describes what he calls the “irony in the Court’s novel use of stare decisis to decide a question of first impression,” questioning the Court’s willingness to be bound, as a matter of stare decisis, by the rationale of a decision construing a different statute.  Given the choice between inconsistent results and extending the effect of a prior erroneous decisions, he would mitigate the damage at the cost of a less coherent body of law.  “[E]rroneous precedents,” he says, “need not be extended to their logical end, even when dealing with related provisions that normally would be interpreted in lockstep.”

Posted in Gomez-Perez v. Potter, CBOCS West v. Humphries, Everything Else