On Monday, the Supreme Court decided to eviscerate a key civil rights protection. It created a new and tougher standard that will make it harder for people to sue over racial discrimination in employment and other contract negotiations. The decision was not a surprise, given the current ideological make-up of the Supreme Court. What was a surprise is that the court decided unanimously to crush this civil rights protection. The four liberal justices signed on to an opinion on civil rights that was written by Neil Gorsuch.
The 9-0 ruling came down in a case called Comcast v. National Association of African American–Owned Media. (I wrote about this case a few months back, if you want the full, gory context.) At issue is a contract dispute between cable giant Comcast and Entertainment Studios Network, which is owned by television producer and comedian Byron Allen. Allen, who is black, alleges that Comcast discriminated against him when it decided not to carry his network.
Allen sued under section 1981 of the Civil Rights Act of 1866. This Reconstruction-era law guarantees that all people have the same right to contract “as is enjoyed by white citizens.” Allen alleged that his race was a motivating factor in Comcast’s decision not to carry his network and argued that this should be illegal under section 1981. But Comcast argued that Allen had to allege that race was the “but-for” cause of Comcast’s decision. Essentially, Comcast argued that Allen needed to show that deep, malicious racism was the only thing Comcast executives were thinking about when they decided to shut out Allen’s network.
Comcast’s position holds African American litigants, and anyone else who falls under the protections of the 1866 Civil Rights Act, to a nearly impossible standard. Racist corporate executives don’t make a habit of walking around saying, “I would give that guy a contract if he weren’t black.” Even when they do think and act like that, they rarely commit such thoughts to an e-mail. Comcast wants black people to be able to prove a level of racism most white people won’t admit to. Under Comcast’s logic, all of their executives could have met with Allen while wearing MAGA hats and asked him which “shithole country” his ancestors came from—and then simply told Allen they weren’t going to carry his network because of “economic” reasons.
The Supreme Court agreed with Comcast’s position. Writing for the unanimous court, Justice Gorsuch explained:
Here, a plaintiff bears the burden of showing that race was a but-for cause of its injury. And, while the materials the plaintiff can rely on to show causation may change as a lawsuit progresses from filing to judgment, the burden itself remains constant.
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It’s worth noting that the 1866 Civil Rights Act does not specify, in its text, that black people must show that racism is the but-for cause of their legal injury. Most of Gorsuch’s opinion is just him explaining why he’s willing to read “but-for” into a law that doesn’t contain the phrase. But that’s what originalists do: They stick closely to the text when it helps their agenda and make up words to add to the text when the original version doesn’t support their opinion.
It’s not what progressives usually do, though. The unanimous resolution of this case adds an air of legitimacy to a terrible decision. Justice Ruth Bader Ginsburg concurred in the judgment and the opinion, but wrote separately. Her reason for joining Gorsuch’s ruling is buried in a footnote:
I have previously explained that a strict but-for causation standard is ill suited to discrimination cases and inconsistent with tort principles.… I recognize, however, that our precedent now establishes this form of causation as a “default rul[e]” in the present context.
Ginsburg is saying that she, in fact, doesn’t agree with the ruling in principle, but that the battle has already been fought and lost. Instead of fighting on the core issue, Ginsburg devotes her concurrence to beating back a new and dangerous theory Gorsuch introduced in his opinion.
While ruling for Comcast, Gorsuch suggested that, although the law prohibits a racially discriminatory outcome, a racially discriminatory process might be legal under the Civil Rights Act of 1866. It is a nonsensical suggestion: How can you discriminate against me when I apply for the job but not discriminate against me when you deny me the position? But the Supreme Court is, apparently, not required to make logical sense when it is authorizing racism.
Gorsuch said the current case doesn’t require the court to rule on the distinction between outcome and process, so he claims he hasn’t made up his mind about it. But Supreme Court justices do not float these kinds of thought bubbles in their opinions idly. Gorsuch basically issued an open invitation for somebody to discriminate in a contractual process and then argue that the outcome of that process is somehow not tainted by racism.
Ginsburg’s concurrence is designed to fight this next war, the one Gorsuch invites. She writes:
Under Comcast’s view, §1981 countenances racial discrimination so long as it occurs in advance of the final contract-formation decision. Thus, a lender would not violate §1981 by requiring prospective borrowers to provide one reference letter if they are white and five if they are black. Nor would an employer violate §1981 by reimbursing expenses for white interviewees but requiring black applicants to pay their own way. The employer could even “refus[e] to consider applications” from black applicants at all.
We can never know, but it’s possible that Gorsuch was going to mandate this kind of racist change to the law in his opinion, as opposed to inviting a different litigant to make the argument in the future. Perhaps he backed off in order to get all nine votes for his more straightforward application of a “but-for” requirement. We don’t know what kind of ground Gorsuch gave in order to secure a unanimous opinion, but Ginsburg’s concurrence suggests that the ruling could have been even worse.
And the case is not over. The court issued a new standard, but it didn’t weigh in on whether Byron Allen met its new standard. For Allen, the practical result of this case is that he has to go back to court and allege that the reason Comcast chose not to carry his network was due entirely to racism, as opposed to racism’s being one factor among many. That’s a much higher bar, but perhaps Allen can still meet it. On Twitter, Sherrilyn Ifill, head of the NAACP Legal Defense Fund, said, “We believe that even under the Court’s stringent new standard announced today, Mr. Allen has sufficiently plead a claim under section 1981.”
If the lower courts agree, Comcast will find itself back at the Supreme Court, this time not arguing for a new standard but defending itself from a claim of racial discrimination. Arguably, should the case return to the Supreme Court on the merits of Allen’s claim, instead of merely the standard under which it should be judged, the ruling will not be unanimous.
All kinds of judicial strategies might be in play, but the cold, hard results of this case are still awful. The justices might not care about the public optics of their opinions, but I do. The Supreme Court just gave corporations and employers a wide grant to discriminate in their contractual negotiations, as long as they’re not too blatant about that discrimination. And the court did it unanimously.
Unless employers talk the way they talked back in 1866, they can now treat racial minorities as if it were 1866. And it seems like Neil Gorsuch is searching for the case that will allow him to turn the clock back even further, maybe all the way back to 1860 if he gets his way.
