Patterson v. Mclean Credit Union 491 U.S. 164 (1989)

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This decision's constitutional significance lies in what the Supreme Court did not do. The civil rights act of 1866 guarantees "all persons … the same right … to make and enforce contracts … as is enjoyed by white persons." In runyon v. mccrary (1976) the Court had held that this provision not only required a state to give blacks and whites the same legal rights in contracting but also forbade private racial discrimination in the making of contracts. Later decisions had applied the same section to employment contracts. Patterson raised the issue of whether this section gave a black employee a right to damages against her employer for acts of racial harassment. In 1988, after oral argument on this issue and without any prompting from the parties, a 5–4 majority of the Court set the case down for reargument and asked the parties to consider whether Runyon v. McCrary should be overruled.

Four Justices bitterly dissented from this order, and outside the Court a clamor of protest rose. The majority that supported the order consisted of the two Runyon dissenters and the three Justices appointed by President ronald reagan, and the order appeared to be the opening salvo in an assault on some of the major gains of the civil rights movement. If Runyon were overruled, why should the Court not overrule jones v. alfred h. mayer co. (1968)? Jones was the landmark decision that (1) interpreted a parallel provision of the 1866 Act to forbid private racial discrimination in the disposition of property, and (2) upheld the law, as so interpreted, on the basis of Congress's power to enforce the thirteenth amendment. The latter possibility seems, in retrospect, to have been unlikely, but the depth of concern is understandable. Sixty-six United States senators and 118 representatives filed a brief urging the Court not to overrule Runyon, and so did the attorneys general of forty-seven states.

In the event, the Court unanimously reaffirmed the Runyonprecedent. The majority opinion (the same majority that had agreed on the reargument order) simply applied the doctrine of stare decisis. The Court went on to read the 1866 act extremely narrowly, rejecting the conclusion of most lower federal courts that the law allowed damages for a private employer's racial harassment of an employee.

Patterson's narrow interpretation of the 1866 act is vulnerable to criticism, as the opinion of the four dissenters and Congress's recent effort to overturn it both attest. But the Court's reaffirmation of Runyon stants as the doctrinal consolidation of a broad political consensus on civil rights that had seemed threatened in the 1980s.

Kenneth L. Karst


Karst, Kenneth L. 1989 Private Discrimination and Public Responsibility: Patterson in Context. Supreme Court Review 1989:1–51.