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February 20, 2008

More on Cracker Barrel

The briefs are collected on the ABA's Supreme Court Preview site (here)

They're interesting. The provision of the statute, 42 U.S.C. § 1981, a part of the Civil Rights Act of 1866, and later amended in the Civil Rights Act of 1991, reads:

Section 1981(a) – All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . . Section 1981(b) – For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship. Section 1981(c) - (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

The plaintiff claimed he was fired in retaliation for complaining about racial harassment by his supervisor. The plaintiff's apparent procedural errors left plaintiff without a claim for retaliation under Title VII, and only with a possible claim for retaliation under Section 1981, however.

Both sides argue the text doesn't allow a retaliation claim. The defendant-petitioner says, basically, it doesn't say "retaliation" and other statutes do. The respondent, who won below in a decision that also resulted in the overruling of a prior circuit decision to the contrary, has a more subtle argument, relying on the fact that the statute creates rights, and it's axiomatic that a right includes the protection for being retaliated against for exercising that right.

They go way beyond that, including a discussion about time and statutory interpretation caselaw: should the statute be interpreted in accordance with the prevailing interpretive norms of the time it was adopted? As noted below, I think the answer to that has to be yes, otherwise you clearly have judges changing the meaning of enacted text.

Oral argument is today. I'll post a link to it later on. This could result in a sea change in statutory interpretation. I'm fearful, personally, that the judicial activists we have on the court will reach the result they want regardless of the strength of either argument, but I've grown cynical in my old age.

February 20, 2008 | Permalink


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