Play It Again, Says the Court

By Richard Lacayo

During last year's battle over the nomination of Robert Bork to the U.S. Supreme Court, his opponents shuddered every time they looked ahead to the cases he might decide. But what really unnerved them was looking back at earlier court rulings that he might press to overturn. When Judge Anthony Kennedy was confirmed for the seat that Bork had sought, those fears subsided a bit. "Conservative but cautious" was the reading on Kennedy, not the man to go ripping up long lines of settled doctrine.

Or is he? There was a lot of worried head scratching last week after Kennedy joined four other Justices in making a stunning announcement: next term the court will reconsider one of its major civil rights decisions. If it eventually decides to overturn the ruling, it would mark the first time in this century that the court has significantly narrowed its interpretation of a civil rights law. Even while cautioning that it was too soon to tell, court watchers were worried that conservative Justices had found in Kennedy the reliable fifth vote needed to forge a regular majority. "Is this the first decision of the real Rehnquist court?" asks University of Virginia Law Professor A.E. Dick Howard.

Liberals and civil rights activists were raising a bigger question: Is this the first sign that the conservatives are poised for a wholesale re- examination of other major decisions involving civil rights, abortion and privacy? Conservatives were gleeful about the prospect of the court's revisiting the kind of decision they have been grumbling about for decades. Says Bruce Fein of the right-wing Heritage Foundation: "Better now than never."

The ruling that the court will reconsider is Runyon v. McCrary, a 1976 case involving suits by black parents against two all-white private schools. That decision required the Justices to look into the language of laws enacted in the wake of the Civil War, when Congress was seeking to guarantee the rights of newly emancipated blacks. Though the 19th century statutes make no mention of schools, one of them does guarantee all persons the same right "to make and enforce contracts." In the 1976 case, the Justices concluded 7 to 2 that Congress intended the law to forbid segregation at nonsectarian private schools. A whites-only policy, they reasoned, denied black parents the opportunity to make contracts with the school for admission of their children.

The Runyon decision became a key element in a fabric of court rulings that forbid racial discrimination in all kinds of private transactions. Although the civil rights laws of the 1960s prohibit discrimination involving housing, employment and public accommodations, they leave many areas of life uncovered. Runyon gave plaintiffs the power to sue for discrimination in just such areas -- for example, a refusal by a shopkeeper to sell to blacks -- and, equally important, to collect monetary damages.

The suit that prompted the majority to call into question the 1976 ruling involved Brenda Patterson, a black employee at the McLean Credit Union in Winston-Salem, N.C. She claimed before the high court earlier this year that she had suffered racial harassment by her supervisor on the job and that she should have the right to sue her employer under recent court rulings, including Runyon. When the court last week ordered the lawyers to return next term to argue whether the Runyon case of 1976 had been rightly decided in the first place, it came as a shock. Neither side in the case had raised the issue.

Justice Harry Blackmun was puzzled. In an angry dissent, joined by William Brennan, Thurgood Marshall and John Paul Stevens, Blackmun wrote that he was "at a loss" to understand why the majority wanted to rethink a ruling "that so clearly reflects our society's earnest commitment to ending racial discrimination." Tut, tut, said the majority; one might think from the dissents that the decision to reconsider "is a 'first' in the history of the Court. One would also think . . . that we have decided today to overrule Runyon v. McCrary. We have of course done no such thing."

Not yet, but in the past when the Justices have reconsidered an earlier ruling, they have often ended by overturning it. Two votes to reverse Runyon seem very likely: Chief Justice William Rehnquist and Byron White were the sole dissenters when the case was first decided for the plaintiffs twelve years ago. And even some legal scholars who believe the Runyon case should be left undisturbed see weaknesses in its reasoning. They say the 19th century statutes in which the court found a right to sue over private discrimination in fact had a narrower purpose: to defeat laws in Southern states that denied blacks the legal capacity to own property or enter into contracts.

If the decision is overturned, the power to bring suit against private discrimination will be hobbled, depriving blacks of an important legal weapon. For one thing, the provisions of the Civil Rights Act of 1964 that prohibit job discrimination do not cover employers of fewer than 15 people, a group accounting for more than 15% of all American jobs. Nor is there a federal law generally prohibiting racial bias by private schools. Yet the 1976 ruling enables blacks to sue in both these areas.

A decision to overrule would almost certainly lead to a campaign to get Congress to reinstate the court's earlier interpretation of the old statute. Congress has very limited power to overturn a Supreme Court ruling that involves the Constitution; it can more easily override the court's readings of federal legislation, as it did in March with the Grove City decision involving aid to schools that discriminate. While the court's ultimate disposition on Runyon will probably not be known until sometime next year, this much is certain: all eyes will be on Justice Kennedy, who may well prove to be the conservatives' fifth man.

With reporting by Jerome Cramer/Washington and Alain L. Sanders/New York