On Wednesday, more than 150 years after the end of slavery and the enactment of federal civil rights laws, the U.S. Supreme Court considered what to do about racism in America.
That may seem like an overstatement. After all, eight justices (minus Ruth Bader Ginsburg, out for sickness) were merely hearing a dispute over the way that Comcast licenses channels. Byron Allen complains that the cable giant refuses to carry the ones that he owns. Pointing to how these channels are being carried by many of Comcast’s rivals, he alleges that Comcast’s refusal is explained by racial animus and amounts to a violation of the Civil Rights Act of 1866. The question before the high court is how a federal judge should examine a discrimination complaint at the beginning of a case. Does Allen get a green light to proceed if he merely alleges that bias is a motivating factor (if not the sole cause)? Or must Allen allege that but for racism, Comcast would have licensed those channels?
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It’s easy to view the present dispute as one over mere pleading standards, and several of the justices at Wednesday’s hearings were seemingly dismayed that their forthcoming decision may amount to nothing more.
But then again, given the persistence of inequality throughout corporate America, permitting a looser standard for discrimination lawsuits will open the courtroom doors to many minorities questioning the status quo. It will invite investigation into the decision-making of corporate executives. For this reason, Comcast is backed by the U.S. Chamber of Commerce, which argues in an amicus brief that the Ninth Circuit’s decision to adopt a “motivating factor” standard instead of a “but for” one “will punish and deter legitimate employment actions, disrupt workplaces, and impose unwarranted costs and reputational harms on businesses.”
Miguel Estrada, appearing for Comcast, echoed the harm that could come by not immediately dismissing substandard allegations of racial bias. He told the justices that this would make it “vastly easier to recover damages under the [Civil Rights Act of 1866] than under any … federal antidiscrimination law,” and that it was clear from precedent that the Supreme Court doesn’t want to “open the doors to discovery based on conclusory allegations or formulaic elements of the offense dressed up as factual assertions.”
Although framed as a choice between two different particular standards for analyzing a complaint at the get-go — with both sides supporting their position with a textual reading of the nation’s oldest civil rights law, an examination of what was happening to the nation in the 1860s, and a discussion of subsequent amendments and judicial interpretations — many of the justices resisted the presented duality.
“What’s the difference?” asked Stephen Breyer. “Who cares whether they say it was a motivating factor or whether they say it was a but-for?”
Several of the justices suggested that the better standard would just be to focus on the plausibility of the discrimination detailed in a complaint.
Sonia Sotomayor told Estrada, “As long as you have enough in your complaint to show racial animus and a reasonable inference can be drawn that that’s a but-for cause, I think a plaintiff has done more than enough. What you seem to be suggesting is that they’re required to anticipate every potentially independent reason you may have had without really knowing it.”
Later, Brett Kavanaugh, who infamously went through a contentious confirmation period last year based on sexual misconduct allegations that many of his supporters found scurrilous, noted how “these cases are not usually thrown out at the motion to dismiss stage,” so long as a complaint “passes a pretty low bar.”
And several justices wondered even if the standard was “but for,” why a plaintiff couldn’t hurdle past it by alleging racial discrimination “on information and belief.” (For example, on information and belief, Comcast would have licensed a channel about social justice but for racism.)
Morgan Ratner, assistant to the solicitor general, appeared for the U.S. government, which is supporting Comcast’s position. She tried an example to articulate what’s at issue.
“Think of it as did race plausibly make a difference,” she said. “Someone applies to be an associate of a law firm. They get a letter back where they think there’s some sort racial language in there, and the letter also says: And, also, we’re not hiring you because you never went to law school. If that person files a complaint complaining about the racial aspect of that denial, I don’t think any court would say that there was any plausible way that that person was going to be hired as a law firm associate, regardless of their race, because they weren’t a lawyer to start with.”
Chief Justice John Roberts was impressed by the hypothetical and later got UC Berkeley School of Law Dean Erwin Chemerinsky, representing Allen’s companies, to at least admit that a complaint — regardless of what standard is used — has to be plausible.
Chemerinsky also acknowledged that eventually, when the case gets to summary judgment or to trial, it would be the plaintiff’s burden to show the defendant’s action happened on account of race.
“Wouldn’t it be a little unusual for us to apply different legal standards at different stages of the same case?” asked Neil Gorsuch.
“[What] if the plaintiff concedes in the complaint that it wasn’t a but-for cause?” asked Roberts. “The case should be permitted to go forward toward its inevitable doom?” asked Roberts.
“This is pre-discovery,” Elena Kagan soon noted. “The plaintiff isn’t going to know everything…”
Towards the end of the hearing, the justices finally got around to addressing what was actually in Allen’s complaint. Samuel Alito pointed out that the lawsuit didn’t merely allege that Comcast had failed to pick up channels based on the fact of black ownership, but also alleged that Comcast was conspiring with African-American leaders like Al Sharpton to “whitewash” its discriminatory practices.
Chemerinsky shrugged that one off by insisting that such allegations were not in the amended complaint before the Supreme Court.
But in his reply time, Estrada retorted that some of the specific names may now be gone from pleading papers, but that the allegations still survive.
Said Comcast’s attorney, “In a nutshell, the theory of the complaint is that Comcast engaged in a racist plot with the Obama administration, the oldest civil rights organizations in the country, Diddy, and Magic Johnson. If there’s any planet where that satisfies the plausibility standard … civil justice has problems.”
