Like most of the country, the Supreme Court is in coronavirus lockdown, closing its building to the public and postponing oral arguments until some future date.
Yet even as the justices seek shelter from a pandemic, they still managed to hand down five opinions on Monday. One of them, in the case Comcast Corp. v. National Association of African American Media, is a blow for the civil rights community — and a potential harbinger for civil rights cases to come.
The case involves a dispute between the cable TV company Comcast and a business that alleged the telecommunications conglomerate refused to carry its channels because it disfavored “100% African American-owned media companies.” (Comcast Corporation, the defendant in this lawsuit, is an investor in Vox Media.)
The Comcast decision, according to NAACP President and CEO Derrick Johnson, “is a huge step backward in our march toward achieving equal opportunity for all.” He warned that the Court’s decision will “significantly restrict the ability of discrimination victims to prove their claims under one of our nation’s premier civil rights laws.”
Viewed through a narrow lens, Comcast is only an incremental loss for the civil rights community. It extends two prior decisions that made it harder for some plaintiffs to prevail in federal court. But the decision is significant not so much because of the particular holding handed down by the Court, but because of the widespread support for this result among the justices.
The decision was unanimous, which suggests that the Court’s liberal minority has given up on an important fight that was hotly contested just a few years ago. More broadly, the Court’s consensus in Comcast signals that the liberal justices may have shifted into triage mode, accepting that some incursions on civil rights are no longer worth resisting in a Court that’s lurched hard to the right.
The case arose out of a Reconstruction-era law providing that everyone in the United States shall have the same right “to make and enforce contracts ... as is enjoyed by white citizens.”
In Price Waterhouse v. Hopkins (1989), the Supreme Court held that victims of employment discrimination could sometimes prevail in a lawsuit against their employer if they showed that the employer acted with “mixed motives” — that is, if the employer took action against the plaintiffs for a combination of reasons, only some of which were unlawful. Price Waterhouse involved Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on “race, color, religion, sex, or national origin.”
But the Court’s taken a sharp right turn since Price Waterhouse. And it’s twice refused to apply this mixed-motive rule beyond Title VII’s ban on employment discrimination. Both of those more recent decisions, however, were 5-4 votes decided along familiar ideological lines.
Comcast is now the third case to rule against mixed-motive suits — that is, the Court held that plaintiffs alleging contract discrimination may not bring a mixed-motive lawsuit. The outcome is not particularly surprising, given the Court’s conservative majority.
What is surprising is that the Court’s decision in Comcast is unanimous (although Justice Ruth Bader Ginsburg wrote a separate opinion warning that the Court should not make further incursions on the ban on contract discrimination). Comcast, in other words, appears to be a sign that the Court’s liberal minority has decided that their best response to a hardline conservative majority is to throw in the towel on some fights, in order to preserve their ability to raise the alarm in other ones.
The thrust of Justice Neil Gorsuch’s opinion in Comcast is that discrimination plaintiffs typically have the burden of proving that they would not have experienced adverse consequences if the defendant were not motivated by racism or some other impermissible motive. Indeed, Gorsuch goes even further than that, arguing that all plaintiffs typically must “establish causation” in order to prevail. As a general rule, “a plaintiff must first plead and then prove that its injury would not have occurred ‘but for’ the defendant’s unlawful conduct.”
But discrimination suits are not like most lawsuits — they turn upon subjective motives that are often only known to the defendant. It is perfectly lawful to fire a black employee because the employer thinks they are a bad worker, because it finds them obnoxious, or even because it does not like the employee’s haircut. Firing an African American worker is illegal only if the worker was fired because of their race.
For this reason, discrimination suits often place the plaintiff in an impossible position. The plaintiff may have a hunch that they are a victim of unlawful discrimination, but unless they can read minds — or, more often, unless the employer is foolish enough to declare in writing that they acted with racist motives — the plaintiff has no way to prove the defendant’s actions were driven by improper means.
Mixed-motive suits are an effort to fix this imbalance by shifting some of the burden of proof toward defendants. Under Price Waterhouse, if a plaintiff can show that unlawful discrimination was one of several factors that motivated their employer’s decision to act against them, the burden shifts to the employer to show that they would have taken the same action even if this unlawful motive were not in play.
Think of it this way. Imagine that a company’s human resources department decides to fire an African American employee based on the recommendation of two supervisors. The first supervisor is simply racist and wants the worker fired because he is black. The second supervisor believes the employee is frequently tardy, and he does not harbor any racist motives.
Under a mixed-motive framework, once the worker demonstrated that the first supervisor was motivated by racism, the company could still prevail. But it would have the burden of proving it would have fired this worker based solely on the recommendation of the second supervisor.
A couple of years after Price Waterhouse, Congress enacted a law that explicitly provides for mixed-motive suits for Title VII plaintiffs — indeed, this law is more favorable to such plaintiffs than the standard announced in Price Waterhouse. Because Congress explicitly wrote mixed-motive suits into the law banning race discrimination in the workplace, the Supreme Court has allowed these suits to move forward.
But, as the Supreme Court drifted right in the years since Price Waterhouse, it grew increasingly hostile toward mixed-motive suits in other contexts. Thus, in Gross v. FBL Financial Services (2009), the Court’s conservative majority did not simply hold that victims of age discrimination may not bring such suits. It also stated openly that “it is far from clear that the Court would have” decided Price Waterhouse in the same way “were it to consider the question today in the first instance.”
A few years later, in University of Texas Southwestern Medical Center v. Nassar (2013), the Court held that plaintiffs who allege they faced retaliation for asserting their rights under Title VII also may not bring mixed-motive suits.
Notably, Justice Ginsburg wrote a dissent on behalf of all four members of the Court’s liberal minority in Nassar. She explained that, even if a strict “but-for” test is “appropriate in some tort contexts,” this test is not appropriate when a court is asked to determine “the mind-related characterizations that constitute motive.”
Ginsburg wrote a four-page separate opinion in Comcast, primarily arguing that the Court should not further undercut the ban on contract discrimination by allowing race discrimination in the process leading up to contract formation. She warns of a potential future where, for example, a lender might require “prospective borrowers to provide one reference letter if they are white and five if they are black.”
No other justice joined Ginsburg’s opinion, and her only explanation for why she joined Gorsuch’s majority opinion comes in a brief footnote. “I have previously explained that a strict but-for causation standard is ill suited to discrimination cases and inconsistent with tort principles,” she writes, citing her Nassar dissent. “I recognize, however, that our precedent now establishes this form of causation as a ‘default rul[e]’ in the present context.”
Ginsburg, in other words, appears to have decided to join the majority in Comcast out of respect for stare decisis — the principle that judges should typically follow past precedent, even if they believe those precedents were wrongly decided.
It’s not uncommon, however, for justices to continue to dissent in cases that rely on a relatively new legal rule that they staunchly oppose. Ginsburg, after all, dissented in Nassar, even though the Court’s decision in that case largely follows from its previous decision in Gross.
Moreover, while the principle of stare decisis is important — both for ensuring predictability in the law and for preventing the Supreme Court from becoming a partisan prize that rewrites the law in bulk every time a different political party gains control of it — it’s also not an ironclad rule. The Court’s desegregation decision in Brown v. Board of Education (1954), after all, effectively overruled past decisions establishing the doctrine of separate-but-equal. Virtually all judges acknowledge that past precedents should sometimes be abandoned.
What’s different about the current Supreme Court is that it is especially likely to overrule past decisions — and in narrow partisan votes — for ideological reasons. According to Washington University political scientist James Spriggs, “about 71% of overulings are 5-4 under [Chief Justice John] Roberts, compared with about 31% under [Chief Justice William] Rehnquist,” Roberts’s predecessor. The trend is likely to accelerate now that the relatively moderate conservative Justice Anthony Kennedy’s been replaced by the staunchly conservative Justice Brett Kavanaugh.
The Court’s liberal minority, in other words, frequently finds itself shouting into a void that the principle of stare decisis is not being respected. They have good reason to fear that the Court is abandoning its traditions to serve ideological goals.
But the liberal justices risk undercutting themselves if they appear to be hypocrites. And sometimes, that means accepting that stare decisis cuts against liberal arguments as well.
So why are the liberal justices no longer standing up for mixed-motive plaintiffs? The most likely explanation is that they fear their conservative colleagues plan to overrule many seminal decisions in the future, and that they believe it’s important for the dissenters to hew to the same principles in a case like Comcast that they will assert when the Court tries to overrule Roe v. Wade or dismantle much of America’s voting rights law.
Comcast is only an incremental ruling against civil rights. But it is also a portent of what is to come — and that future bodes ill for anyone who cares about victims of discrimination.