Volume 3 Number 2SPECIAL MONITOR
SUPREME COURT TO RECONSIDER RUNYON V. MCCRARY
SENIOR EDITOR'S NOTE: In this issue of the MONITOR, Karen McGill Arrington summarizes the facts and issues surrounding the Supreme Court's April 25 order calling for arguments on whether a 1976 decision applying a Reconstruction era civil rights law to private institutions should be reconsidered and perhaps overruled.
The order came as a shock to lawyers and other interested parties both inside and outside the civil rights community. On several occasions over the past two decades, the Court has refused to apply principles of equal protection of the laws to new fact situations as when it refused by a 5-4 margin in 1974 to sustain lower court orders calling for metropolitan school desegregation. But never in the modern era of civil rights has the Court actually taken a major step backwards, by overruling a decision extending basic protections to minorities. While the five member majority was careful to point out that it was not overruling the Runyon case but only calling for new argument, the potential significance of its action was not lost on civil rights groups, legislators, editorial writers and many others.
Some of the briefs summarized in the MONITOR argue that whether or not the Court was correct in its T-976 decision it should refuse to reconsider the decision because of the doctrine of stare decisis adherence to precedent. Critics may ask whether civil rights advocates are being consistent in urging that the Court be bound by precedent. After all, lawyers for minorities built their legal movement by arguing that the status quo was unsatisfactory and that courts should be willing to cut new ground in the interest of social justice.
The answer given in the briefs is two-fold. First, what is at stake in the current case rests on interpretation not of the Constitution but of a statute enacted by Congress. The Court is far more unconstrained in the former case where it alone has the final word in construing the Constitution. Where construction of a statute is the issue, the Court impinges on the function of the legislature where-it undertakes to correct an interpretation that Congress has accepted or even ratified.
The second answer is that even in matters of constitutional interpretation, the Court ordinarily departs from precedent only where there has been a major change in circumstances.
The late Justice Benjamin Cardozo wrote in The Nature of the Judicial Process that sometimes practices grow up that "do not stand comparison with accepted norms of morals" and that have been tolerated only because of indolence or passivity. In such cases, he said, "one of the highest functions of the judge is to establish the true relation between conduct and profession."
In Brown v. Board of Education, the Court performed this "highest function." In contrast, it is not the law against racial discrimination by private schools or employees in their contractual relations with minorities that "does not stand comparison with accepted norms of morals," but the practice of discrimination itself. That is an important difference.
William Taylor, Senior Editor
1. The Civil Rights Act of 1866
2. Patterson v. McLean Credit Union
3. Runyon v. McCrary
LDF Brief on Reargument
Supreme Court Asked Not to Overturn Runyon
The Impact of Reconsidering and Possibly Overruling Runyon