Article by William B. Gould, IV
Amidst rising expectations of social and economic reform throughout Eastern Europe and South Africa, in 1989 the United States Supreme Court sought to retard, if not emasculate, both judicial and legislative initiatives undertaken in this country during the race relations revolution of the post-World War II era. True, the Court has not turned back the clock to 1896 when it held in Plessy v. Ferguson that “separate, but equal” was constitutional. But, just as the dramatic impact of the Reagan Administration's hostility toward civil rights can be appreciated only in the context of the gains made before January 1981, so too the Court's latest pronouncements must be viewed in juxtaposition with a series of the high tribunal's rulings made in the past three and one-half decades.
The irony in the Court's startling employment discrimination holdings of 1989 is that the American institution most profoundly associated with an unwavering hostility toward the racial caste system in this country now has taken a deregulatory stance, as Professor Karst would have it, if not one of opposition toward contemporary civil rights principles. Candid analysis mandates acknowledgement that in 1989, as Justice Marshall has noted, “the Court's approach to civil rights cases has changed markedly.” As Justice Marshall stated, “It is difficult to characterize last term's decisions as a product of anything other than a retrenching of the civil rights agenda. In the past thirty-five years, we have truly come full circle.”
As a result of the Court's civil rights abdication flowing from its 1989 rulings, Congress has risen to assertiveness, a vacuum-filling characteristic displayed frequently in the late 1970s and 1980s and one that Justice Brennan noted as demonstrative of a willingness “to overturn this Court's mistaken interpretations of civil rights statutes.” However, the relationship between Congress and the Court has not always been what it is today. Following the Court's landmark decision in Brown v. Board of Education, holding that “separate, but equal” public schools are unconstitutional, Congress responded with appropriate civil rights legislation in 1957 and 1960. These Acts laid the foundation for Congress more ambitious undertakings of the 1960s. Perhaps the present relationship between Congress and the Court replicates more precisely the previous century's civil rights revolution in which Congress stepped forward into a place of leadership. During the Reconstruction era, Congress enacted the Civil Rights Act of 1866, only to find the Court hostile toward the implementation of racial equality. This hostility was demonstrated most graphically in the Civil Rights Cases and later in Plessy itself, both the mirror images of Chief Justice Taney's infamous Dred Scott decision to which the Reconstruction Congress had responded. As Professor John Hope Franklin has noted, the congressional initiative took place in response to patterns of racial discrimination: “As hostility and assertions of racial superiority swirled around the heads of the freedmen in 1865 and 1866, their need for protection was desperate.”
Thus, the Court's current posture is more akin to that of the previous century, but this Court, unlike its predecessor, has fewer blank pages upon which to write. As a result, this Court must distinguish prior holdings creatively to avoid and erode civil rights precedent.
Griggs v. Duke Power Co., one of the most significant employment discrimination precedents prior to 1989, is illustrative of the hurdles that confronted the Court during the past year. Griggs held that an intent to discriminate was not a necessary prerequisite to a violation of the Civil Rights Act of 1964 when a facially neutral employment practice has a disparate impact upon minorities or women. Johnson v. Railway Express Agency, Inc., a 1975 ruling decided in the wake of the Warren Court's landmark resuscitation of the Civil Rights Act of 1866 in the nonemployment arena, presents yet another obstacle to the Court. The 1975 ruling extended the Reconstruction legislation to employment discrimination cases, providing more significant remedies than Congress had made available in this century's round of civil rights legislation. Eradication of these holdings became the contemporary Court's first order of business in 1989.
What makes this era particularly daunting is that it unfolds alongside the formal unacceptability of racism in American society. The prevailing mores demand that racial discrimination be denounced by all branches of government as well as by respectable opinion. Thus, Justice Kennedy, authoring one of the employment discrimination rulings issued by the Court in 1989, could say the following:
In recent decades, state and federal legislation has been enacted to prohibit private racial discrimination in many aspects of our society . . . . [This is] not inconsistent with the prevailing sense of justice in this country. [It] is entirely consistent with our society's deep commitment to the eradication of discrimination based on a person's race or the color of his or her skin.
This Article focuses principally upon four decisions: Wards Cove Packing Co. v. Atonio, Price Waterhouse v. Hopkins, Patterson v. McLean Credit Union, and Lorance v. AT&T Technologies, although the Court has been active in other areas as well.
About the Author
William B. Gould, IV. Charles A. Beardsley Professor of Law, Stanford Law School; Visiting Professor of Law, Howard Law School, Fall 1989.
Citation
64 Tul. L. Rev. 1485 (1990)