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Volume 3 Number 2 Introduction
On April 25, 1988 the Supreme Court in a 5-4 decision ordered reargument in the Patterson v. McLean Credit Union, 56 U.S.L.W. 3763 (1988) case, and instructed the parties in the case to submit briefs and to argue whether the Court's interpretation of the Civil Rights Act of 1866 in Runyon v. McCrary, 427 U.S. 160 (1976) should be reconsidered. In '-6-f-fect, the Court will be reconsidering whether blacks and other minorities have the right, pursuant to the 1866 law, to sue private persons or organizations for acts of racial discrimination. The 1866 law was designed to secure the rights of minority citizens to make and enforce contracts (section 1981) and to acquire property (section 1982).
In the past twenty years the Supreme Court has decided more than a dozen cases involving private discrimination under sections 1981 and 1982. Supreme Court precedent in this area goes back to 1968, when the Court held in Jones v. Mayer, 392 U.S. 409 (1968), that acts of private discrimination without state involvement were actionable under sec. 1982. In 1975, the Court ruled in Johnson v. Railway Express Agency, 421 U.S. 454 (1975) that sec. 1981 "affords a federal remedy against discrimination in private employment on the basis of race." The next year, the Court reaffirmed this conclusion in Runyon, holding that sec. 1981prohibits racial discrimination by a private school. More than a hundred lower court cases have relied on the Supreme Court's rulings that sec. 1981 prohibits private discrimination in contracts.
The Court's decision to reconsider this issue was made on its own initiative. It was not a question raised by the parties.
In a dissenting opinion, Justice Blackmun, joined by Justices Brennan, Marshall and Stevens, wrote:
"The Court today asks the parties to rebrief and reargue this case, focusing not on some neglected subtlety of the issues presented for review or on any overlooked jurisdictional detail, but on a question not presented ... The Court's determination now to reach out to reconsider that prior decision and everything that has been built upon it, is neither restrained, not judicious, nor consistent with the accepted doctrine of stare decisis [Stare decisis is a policy of adhering to announced rules of laws absent a compelling reason to change the law. It allows for stability, and predictability by those affected by the laws.]
"Although it is probably true that Most racial discrimination in the employment context will continue to be redressable under other statutes, it may be that racial discrimination in certain other contexts is not actionable independently of sec. 1981. 1 am at a loss to understand the motivation of five members of this Court to reconsider an interpretation of a civil rights statute that so clearly reflects our society's earnest commitment to ending racial discrimination, and in which Congress so evidently has acquiesced. I can find no justification for the bare majority's apparent eagerness to consider rewriting well established law."
Justice Stevens in a dissenting opinion wrote:
"The Court's order today will, by itself, have a deleterious effect on the faith reposed by racial minorities in the continuing stability of a rule of law that guarantees them the 'same right' as 'white citizens.' To recognize an equality right; a right that 12 years ago we thought 'well established' and then to declare unceremoniously that perhaps we were wrong and had better reconsider our prior judgment, is to replace what is ideally a sense of guaranteed right with the uneasiness of unsecured privilege. Time alone will tell whether the erosion in faith is unnecessarily precipitous, but in the meantime, some of the harm that will flow from today's order may never be completely undone."
The majority consists of Chief Justice Rehnquist, and Justices Scalia, O'Connor, White and Kennedy.
  
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