Article Summary

The justices of the U.S. Supreme Court seemed more bemused than enlightened by arguments in Comcast Corp. v. National Association of African American-Owned Media, showing that the case is ill-suited as a tool for clarifying Section 1981 — a crucial anti-discrimination statute. Granting cert now looks like a mistake that the high court shouldn't compound by issuing a decision that could do more harm than good. Better to wait for a more fitting vehicle.

This expert analysis by TELG managing principal R. Scott Oswald was published by Law360 on November 14, 2019.

Originally published in:

Arguments Show That Comcast Suit Is a Flawed Vehicle for Making Law

By R. Scott Oswald

How much racial discrimination must someone describe before a court may conclude, under 42 U.S.C. § 1981, that they might not have enjoyed “the same right” as a white person to — for instance — compete for a job?

The U.S. Supreme Court addressed this question in 1989, giving what seems like the only sensible response: As long as it’s within the scope of the venerable civil rights law, any intentional racial discrimination may be a violation of the statute, which first became law in 1866.

After all, Section 1981, as it’s commonly known, calls for all races to be treated the same.

“In order to prevail under § 1981,” Justice Anthony Kennedy wrote succinctly in Patterson v. McLean Credit Union, “a plaintiff must prove purposeful discrimination.”

Since then, under the Civil Rights Act of 1991, the much-used statute has been broadened and clarified by Congress. So why, on Wednesday, did a new slate of justices seem so bewildered by oral arguments in Comcast Corp. v. National Association of African American-Owned Media, a case that was granted to fine-tune Section 1981’s pleading requirements?

In large part, it was because Comcast is a manifestly flawed vehicle for making law: A non-employment case that will impact mostly employment cases, concerning the dismissal of a complaint that omitted a key fact and was tainted by dubious insinuations, posing a false dichotomy between pleading standards that could be harmonized, and examining a decision from the U.S. Court of Appeals for the Ninth Circuit that added its own layer of shakiness.

These issues were compounded on Wednesday by muddy advocacy — particularly on the part of Erwin Chemerinsky, a Berkeley law professor who argued on behalf of respondents including a company owned by Byron Allen, a former TV host and aspiring mogul who claims that Comcast discriminated against him by refusing to carry his media properties on its cable network.

In a stint at the lectern that veered from opaque to baffling, Mr. Chemerinsky seemed repeatedly to get tangled and turned-around, requiring Chief Justice John Roberts, among others, to ride to his rescue.

In the end, the justices seemed to conclude that there was far less to Comcast than met the eye: Adequately pleading a Section 1981 case isn’t rocket science, they suggested — and anyhow, the sides seemed not really to disagree. Justice Brett Kavanaugh proposed correcting what he viewed as an incidental legal error by the Ninth Circuit and then tossing the hot potato back to lower levels, where he indicated the case should likely proceed.

A better outcome might be to dismiss the writ of certiorari as improvidently granted. The supposed error by the Ninth Circuit was never briefed and a “correction” could do more harm than good. Everything else, meanwhile, can wait for a better vehicle — and for any light that may be shed by the upcoming case of Babb v. Wilkie, about standards of causation under a different statute, the Age Discrimination in Employment Act.

Babb looks to be cleaner and better briefed than Comcast, and the ADEA provision in question demands an outcome that’s just as pure as Section 1981’s “same right” phrasing, requiring that personnel actions be “free from any discrimination.” Arguments are scheduled for January.

On its surface, Comcast purported to pit two pleading standards against each other: A lenient “motivating factor” framework and a more demanding “but-for” framework. Arguing for Comcast, Miguel Estrada of Gibson Dunn claimed that Section 1981 “requires but-for causation.” Along with Morgan Ratner, who argued for the U.S. Department of Justice in support of Comcast, he ran into two main obstacles.

First, none of the justices seemed willing to recognize any real distinction between the two allegedly different pleading standards: Chief Justice Roberts called the issue “somewhat academic,” while Justice Stephen Breyer asked, “Who cares whether they say it was a motivating factor or whether they say it was a but-for?”

Indeed, when Justice Breyer suggested that a motivating-factor complaint can transform into a but-for complaint simply by alleging the same facts and adding a bald contention that Comcast “on information and belief” denied Mr. Allen on the basis of race, no other justice seemed to have a problem with his formulation.

“What’s the difference?” shrugged Justice Breyer.

Second, some of the justices challenged the underlying idea that some racial discrimination might be OK under Section 1981, as long as it didn’t change the substantive outcome.

If that’s the standard, Justice Sonia Sotomayor asked Ms. Ratner, “How can you say that [plaintiffs] have the ‘same right’ and we’re eliminating all vestiges of discrimination?”

Justice Breyer echoed this concern, as did Chief Justice Roberts at times — although, perhaps surprisingly, Justice Elena Kagan seemed unfazed by a but-for burden of persuasion for a plaintiff under Section 1981, something that’s at least arguably contrary to Justice Kennedy’s 1989 opinion. The substantive issue wasn’t before the court, but Justice Kavanaugh seemed eager to muster a majority for instructing the Ninth Circuit on it regardless.

(Justice Ruth Bader Ginsburg presumably would have tried to pump the brakes on this, but she missed the argument due to a stomach bug. She will still participate in deliberations.)

Even more surprising than Justice Kagan’s unconcern was Mr. Chemerinsky’s agreement with his opponents that Section 1981 requires but-for causation in order for a plaintiff ultimately to prevail — so that he was forced to burn time explaining why a different pleading standard made sense, while also asserting that he met the other side’s higher pleading standard anyhow even as he argued that but-for pleading “is often an impossible standard.”

It was a hard sell.

If a plaintiff can’t manage even to allege a but-for case, asked Justice Samuel Alito — and if that’s actually the standard for substantive success — then why should such a case “be permitted to go forward toward its inevitable doom?”

And furthermore, needled Chief Justice Roberts, “why have you so strenuously resisted alleging but-for causation?”

“We do actually allege [it],” answered Mr. Chemerinsky, adding another layer of fog as he explained that his point was that it’s not required.

Ultimately the justices seemed stymied by their inability to make progress with Mr. Chemerinsky. Perhaps peevishly, Justice Alito ended by diverting the argument toward other reasons the case might have been dismissed, including some conspiracy-tinged allegations in the complaint.

“Do you think that had any effect,” he asked pointedly, “on what the district court did here in granting dismissal?”

The conspiratorial stuff was omitted in the second amended complaint, Mr. Chemerinsky replied, leaving himself open to rebuttal from Mr. Estrada just a minute later.

Mr. Estrada took his opportunity with relish, somewhat overstating the “theory of the [operative] complaint” as a racist plot between Comcast and “the Obama Administration, the oldest civil rights organizations in the country, Diddy [Sean Combs], and Magic Johnson,” thereby reminding the court of the checkered history of this case.

Mr. Estrada did his client no favors by tossing in a shabby statement that Mr. Combs and Mr. Johnson — two of the most prominent Black cultural figures in recent decades, both hugely successful entrepreneurs — “apparently are some sort of artists,” but he still made his point.

In the end, the justices indicated, this case should likely move into discovery. It doesn’t need a Supreme Court decision to do so, however — and a dismissal of cert might be the most dignified way ahead. There are better vehicles for making law.


R. Scott Oswald is managing principal of The Employment Law Group, P.C.

(Note: This version has been edited slightly from the version published by Law360, and carries a slightly different headline.)