AMERICAN JOURNAL OF LAW AND EQUALITY |

ISSUE 2 | 2022

AMERICAN JOURNAL
of LAW and EQUALITY

HOW THE SUPREME COURT DISTORTED TEXT, IGNORED
HISTORY, AND GASLIGHTED THE BOLD PROMISE
OF THE CIVIL RIGHTS ACT OF 1866
A Comcast Case Study

Aviam Soifer*

PROLOGUE

But for Blacks, No Civil War: Abraham Lincoln (1862)
On August 14, 1862, President Lincoln hosted a delegation of ﬁve local Black ministers
he had invited to the ﬁrst-ever meeting of any president with Black leaders. As the small
group met with Lincoln at the White House, the President was still awaiting a signiﬁcant
Union military victory, which he considered a prerequisite for announcing his plan to is-
sue the Emancipation Proclamation on January 1, 1863.1 Though the legal status of slaves
who escaped to Union lines remained murky during this early Civil War period—these
former slaves often were labeled and kept as “contraband”2—Lincoln continued to push
his belief in foreign colonization as the most promising option for freed slaves.

Asserting that the races should be “separated,” Lincoln convened this August meeting
to seek help from Black leaders with his plan to relocate Black Americans to Central

*Professor and Former Dean, William S. Richardson School of Law, University of Hawai’i. The author expresses great
gratitude to Mary Bilder, Erwin Chemerinsky, Reed Hundt, Martha Minow, and Carol Weisbrod for their customary
close reading and their ﬁrst-rate suggestions; to Sydney Tsukenjo and Jake Honigman for unusually helpful research
assistance; and to Faculty Assistant Keiralyn Pease. Many thanks also, as always, to the staﬀ and student assistants at
the William S. Richardson School of Law Library.

An incomplete victory at the terrible Battle of Antietam aﬀorded that opportunity; Lincoln disclosed his plan to
his Cabinet on September 22 and made his intention public on September 23, 1862. DORIS KEARNS GOODWIN, TEAM
OF RIVALS 481–83 (2005).
Aviam Soifer, Status, Contract, and Promises Unkept, 96 YALE L.J. 1916, 1930, 1934–35, 1940 (1986).

© 2022 Aviam Soifer. Published under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International
license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00035

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America, where they could thrive in a “similarity of climate with your native land.”3 David
Blight, in his Pulitzer Prize–winning biography of Frederick Douglass, summarized “this
infamous meeting” as “Lincoln’s worst racial moment . . . [when] a nearly desperate presi-
dent gave a one-way lecture looking for self-sacriﬁcing black men to volunteer to leave their
country to assuage the fears of white people who now had to imagine the end of slavery.”4
As he pushed for his colonization plan, Lincoln declared to the ministers: “But for your
race among us there could not be war, although many men engaged on either side do not
care for you one way or another.”5 Lincoln acknowledged that Black people, slave or free,
had suﬀered “the greatest wrong inﬂicted on any people”; he nevertheless went on to assert
that “[o]n this broad continent, not a single man of your race is made the equal of a single
man of ours.”6 In front of invited members of the press, Lincoln told the Black delegation
that if they did not take on leadership for voluntary repatriation, they would thereby
demonstrate “an extremely selﬁsh view of the case.”7

Across the country, “Blacks generally exploded with ire at Lincoln’s colonization ad-
dress.”8 Frederick Douglass sardonically noted that Lincoln’s “but for” rhetorical claim
was akin to a “horse thief pleading that the existence of the horse is the apology for his
theft or the highway man contending that the money in a traveler’s pocket is the sole cause
of his robbery.”9 And Horace Greeley, the inﬂuential editor of the New York Tribune,
skewered Lincoln for being “unduly inﬂuenced by the counsels . . . of certain fossil poli-
ticians hailing from the Border States.”10

Lincoln sought to regain ground by publishing a public letter eight days after his un-
fortunate colonization meeting. Though his response remained deeply problematic, it also
illustrated the core problem in Lincoln’s earlier “but for” claim about Black people and the
Civil War. In what was to become a famous letter, Lincoln wrote: “My paramount object
in this struggle is to save the Union, and is not whether to save or destroy slavery.”11 He
continued, “If I could save the Union without freeing any slave I would do it, and if I could
save it by freeing all the slaves I would do it; and if I could save it by freeing some and
leaving others alone I would also do that.”12

3
4
5

6
7
8
9

10
11
12

DAVID W. BLIGHT, FREDERICK DOUGLASS 372 (2018).
Id. at 371 (emphasis added).
Id. (quoting Address on Colonization to a Deputation of Negroes, 5 THE COLLECTED WORKS OF ABRAHAM LINCOLN
370–75 (Roy P. Basler ed., 1953) (emphasis added)).
Id.
Id. at 371 (quoting Address on Colonization to a Deputation of Negroes, supra note 5, at 372).
Id. at 372.
Id. at 373. Blight added, “The president’s intentions with colonization have long been the subject of rigorous
debate in Lincoln scholarship.” Id. at 374–77. Douglass later came to know Lincoln personally and to think of
him much more favorably.
GOODWIN, supra note 1, at 471.
Id.
Id.

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By November 1863, Lincoln’s Gettysburg Address proclaimed that the untold amount
of blood and suﬀering during the Civil War promised “a new birth of freedom.”13 With
Black Americans ﬁnally allowed to enlist, their storied courage and gruesome losses had
much to do with turning the tide of the war as well as of public opinion. As the end of the
awful war approached in 1865, Lincoln lobbied with unusual enthusiasm for adoption of
the Thirteenth Amendment.14 This history oﬀers only one of many examples during
Lincoln’s presidency that illustrate the complexity, if not the impossibility, of isolating
speciﬁc causation in matters of race and public policy. In pursuit of some single legal cause,
the diﬃculty becomes even more salient, particularly when it is purportedly anchored by
a statute passed by a multi-membered political body more than 150 years ago.

To be fair, determining the cause or causes of the Civil War has bedeviled generations of
historians and their students. Nonetheless, Lincoln’s rather desperate “but for” claim within
his evolving view of slavery exempliﬁes a common fallacy in eﬀorts to discern, isolate, and
articulate but-for causation in complex situations. Though Lincoln moved rapidly toward
accepting that all Black people born in the United States ought to be citizens protected by
their government, his stumble into crass “but for” reasoning in 1862 illustrates the bad
habit—all too common among even smart lawyers and judges—of isolating speciﬁc ideas
from their contexts. As Thomas Reed Powell famously put it, “If you think that you can
think about a thing inextricably attached to something else without thinking of the thing
which it is attached to, then you have a legal mind.”15 Words matter. So does context.16

13
14

The Gettysburg Address, CORNELL, https://rmc.library.cornell.edu/gettysburg/good_cause/transcript.htm.
In his ﬁrst public address after the Thirteenth Amendment was sent to the states, on February 1, 1865, Lincoln
termed the Thirteenth Amendment “a King’s cure for all the evils.” 8 THE COLLECTED WORKS OF ABRAHAM LINCOLN
254 (Roy P. Basler ed., 1953). For an excellent overview of the events that led to the ultimate passage of the
Thirteenth Amendment, see MICHAEL VORENBERG, FINAL FREEDOM: THE CIVIL WAR, THE ABOLITION OF FREEDOM
AND THE THIRTEENTH AMENDMENT (2001). Lincoln and his political allies were not above promising jobs and
more, and Lincoln made use of his personal arm-twisting skills. GOODWIN, supra note 1, at 686–89. Some of
this successful lobbying campaign was dramatized in LINCOLN (DreamWorks 2012), Steven Spielberg’s ﬁne ﬁlm
based on Goodwin’s book. Lincoln went so far as to endorse at least limited Black suﬀrage in Louisiana as early as
a private March 13, 1864, letter to Louisiana Governor Hahn, 7 THE COLLECTED WORKS OF ABRAHAM LINCOLN 243
(Roy P. Basler ed., 1953). For analysis of the political ramiﬁcations of this fraught issue, see LAWANDA COX & JOHN
H. COX, POLITICS, PRINCIPLE, AND PREJUDICE, 1865–1866: DILEMMA OF RECONSTRUCTION AMERICA (1963); LaWanda
Cox & John H. Cox, Negro Suﬀrage and Republican Politics: The Problem of Motivation in Reconstruction
Historiography, 33 J.S. HIST. 303 (1967).
Fisher v. Univ. of Texas at Austin, 570 U.S. 297, 335 n.2 (2013) (Ginsburg, J., dissenting) (quoting THURMAN
ARNOLD, THE SYMBOLS OF GOVERNMENT 101 (1935)).
One might think this obvious, yet it is remarkable how often Justice O’Connor’s statement, “Context matters,” has
been quoted, far beyond the speciﬁc context of her statement, which was, in full: “Context matters when reviewing
race-based governmental action under the Equal Protection Clause.” Grutter v. Bollinger, 539 U.S. 308, 327
(2003). See, e.g., Vitolo v. Guzman, 999 F.3d 353, 370 (6th Cir. 2021) (Donald, J., dissenting) (“Here, context
matters.”); Mitchell v. Washington, 818 F.3d 436, 450 (9th Cir. 2016) (Clifton, J., concurring in part and
concurring in the judgment).

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INTRODUCTION

“The only historical remains in the United States are the newspapers, but if a number
be wanting, the chain of time is broken, and the present is severed from the past.”17

This essay focuses on the strikingly ahistorical United States Supreme Court decision in
Comcast Corp. v. National Ass’n of African American–Owned Media.18 The Court’s
strained yet unanimous view of the country’s ﬁrst civil rights law has been little noticed,19
but it is likely to have a substantial eﬀect over time. The Court introduced a new require-
ment that a civil rights plaintiﬀ must persuade a fact ﬁnder that the defendant’s racial
discrimination was the “but-for” cause of an alleged harm to establish a violation of the
Act. Justice Gorsuch’s opinion for the Court claimed that this result was compelled by
“clues” accumulated “collectively . . . from the statute’s text, its history, and our
precedent.”20

Despite the Court’s professed devotion to textualism in numerous decisions during its
2019 Term, Comcast oﬀers a troubling illustration of the Justices’ willingness to manipu-
late categories and to use sleight of hand when they do not wish to be textually bound. The
lengthy litigation and the frustrating, prolonged settlement failures involving the plaintiﬀs
in Comcast may partially explain why the decision came out as it did, and unanimously at
that. “African American entrepreneur Byron Allen,” the operator of seven television sta-
tions, ﬁled suit alleging racial discrimination after his Entertainment Studios Network
(ESN) network unsuccessfully sought “[f]or years . . . to have Comcast, one of the nation’s
largest cable television conglomerates, carry its channels.”21 Yet what might initially seem
a narrow decision in a messy and not terribly sympathetic case is almost certain to have
profound ripple eﬀects. Tragically, it also joins a long line of Supreme Court decisions that
have helped eviscerate the “promise of freedom” that Congress speciﬁcally made within

18
19

20
21

ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA—PART II: INSTABILITY OF THE ADMINISTRATION IN THE UNITED STATES
ch. XII (Harvey C. Mansﬁeld & Delba Winthrop, trans., Univ. of Chi. Press, 2000) (1853).
Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009 (2020).
The Court signiﬁcantly narrowed the coverage of 42 U.S.C. § 1981, derived directly from § 1 of the Civil Rights
Act of 1866, 14 Stat. 27 (1866).
Comcast, 140 S. Ct. at 1014.
Id. at 1013. Bargaining reached an impasse; ESN then ﬁled its § 1981 discrimination suit, and many charges and
countercharges, as well as “[m]uch motions practice,” ensued. Other large cable companies had settled with ESN
by the time the Comcast case reached the Supreme Court.

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the text of its early Reconstruction statutes as well as the post–Civil War constitutional
amendments.22

Part I of this essay summarizes the text and context of the pathbreaking 1866 Civil
Rights Act—our nation’s ﬁrst civil rights statute—which boldly redeﬁned United States
citizenship and speciﬁcally listed rights inherent in it.23 Part II analyzes the Comcast opin-
ion and its conclusion that federal civil rights claims under the 1866 Civil Rights Act ought
to be analyzed as tort claims. Remarkably, torts are mentioned nowhere in the statute. As
part III illustrates, the current Court’s much-vaunted textualist approach proved at least
double-edged during the Court’s 2019 Term, which included Comcast. In the Court’s
often-strained textualism during that Term, the Justices generally paid at least some

Best known are the Slaughter-House Cases, 14 Wall. (53 U.S.) 36 (1873), and the Civil Rights Cases, 109 U.S. 3
(1883). At least as illustrative of the Court’s complicity with virulent racism was United States v. Cruikshank, 92
U.S. 542 (1876) (vacating convictions of white mob members who killed dozens of Black Americans—including
those who surrendered after a pitched battle at the Colfax, Louisiana, Courthouse). See generally James Gray
Pope, Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American
Constitutional Canon, 49 HARV. C.R.-C.L. L. REV. 385–447 (2014).

Another 1876 decision, Hall v. United States, 92 U.S. 27 (1876), is virtually unknown, but it is similarly
revealing and troubling: Hall, “a man of color, of Indian and African descent,” was sold at a slave market in
Washington, D.C., and taken to New Orleans, where he was sold in 1844 to the Bachelor’s Bend plantation in
Mississippi. Decades later, Hall claimed that he had been born free, that his mother was a free Indian woman, and
that he was entitled to a share of the proceeds after the federal government seized and sold the plantation’s cotton
during the Civil War. The Court made short work of Hall’s claim. In an apparent extreme extension of the ancient
equitable doctrine of nunc pro tunc, Justice Swayne’s unanimous opinion stated: “[I]t is necessary, as it were, to
roll back the tide of time, and to imagine ourselves in the presence of the circumstances by which the parties were
surrounded when and where the contract is said to have been made. Slavery then existed in Mississippi, and her
laws upon the subject were as they had been for years. Hall was brought to the State, and there sold, bought, held,
and treated as a slave.” Id. at 30. Swayne added: “It was an inﬂexible rule of the law of African slavery, wherever it
existed, that the slave was incapable of entering into any contract, not excepting the contract of marriage.” There-
fore Hall, whose color Swayne said was “presumptive proof of bondage,” could have no legitimate claim to the
cotton. To the very limited extent that Hall was cited thereafter, it was primarily to invalidate retrospectively pre–
Civil War slave marriages in disputes over inheritance rights.
Senator Lyman Trumbull of Illinois, the primary Senate sponsor of the Civil Rights Act of 1866, declared that the
statute would assure “the trumpet of freedom that we have been blowing throughout the land” and would protect
“such fundamental rights as belong to every free person.” Cong. Globe, 39th Cong., 1st Sess. 474. Trumbull
explained further: “[T]he very object of the bill is to break down all discrimination between black men and
white men. . . . [It] is simply intended to carry out a constitutional provision, and guaranty to every person of
every color the same civil rights.” Id. at 599. To James F. Wilson of Iowa, the chairman of the House Judiciary
Committee, the statute’s purpose was similarly clear: “to turn the artillery of slavery upon itself,” and to establish a
federal guarantee of “the holy cause of liberty and just government.” Id. at 1118. See generally Michael Vorenberg,
Citizenship and the Thirteenth Amendment: Understanding the Deafening Silence, in THE PROMISES OF LIBERTY:
THIRTEENTH AMENDMENT ABOLITIONISM AND ITS CONTEMPORARY VITALITY 58 (Alexander Tsesis ed., 2010);
Alexander Tsesis, Introduction: The Thirteenth Amendment’s Revolutionary Aims, in THE PROMISES OF LIBERTY,
supra note 23, at 1.

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attention to the actual texts of the statutes and treaties under review. Comcast, however,
oﬀers a striking contrast. The decision lacked any basis whatsoever in the statutory text
at issue.

Despite the lengthy and somewhat embittered litigation in Comcast, the underdevel-
oped nature of its facts may help explain why all the justices joined in the result. Yet the
Court’s inattention to the text and history of the Civil Rights Act of 1866 points to great
future mischief. It also raises the specter of result-oriented judicial cynicism.

But-for Causation

A but-for causation test has much to do with the relative roles of judges and juries in
tort cases and very little to do with the language of statutes or the discernible intent of
legislators. Nearly a century ago, Leon Green—torts expert, leading legal realist, and
long-tenured Dean of the Northwestern University School of Law—convincingly demon-
strated the artiﬁciality of but-for causation as a legal doorkeeper.24 Much more recently, an
article by my colleague Mari Matsuda further described how but-for restrictions in tort
law impose social costs on those least able to bear them.25 There also have been compel-
ling arguments for the creation of constitutional torts, frequently keyed to the substantial
damage done by the denial of civil rights to the important dignitary claims of plaintiﬀs as
well as to the basic protection owed them as American citizens.26 Nonetheless, the Court
has not embraced such theories about government’s obligation to protect the civil rights of

Leon Green, Are There Dependable Rules of Causation?, 77 U. PA. L. REV. 601, 605 (1929). Dean Green described
the test as “vicious from two aspects: (1) it presents an inquiry impossible of determination; the case is not what
might have happened but what has happened; (2) the inquiry while stated in what seems to be terms of cause is in
fact whether the defendant should be held responsible.”

25 Mari Matsuda, On Causation, 100 COLUM. L. REV. 2195 (2000). Colum McCann’s remarkable novel, Apeirogon,
oﬀers a powerful example of how problematic it can be to isolate but-for causation. The book focuses on two
fathers—one Palestinian, one Israeli—who both lost young daughters, killed in senseless violence: “But for a
turn to the book store. But for an early bus. But for a random movement on Ben Yehuda. But for a trip to
Ben Gurion airport to collect her grandmother. But for a late sleep-in. But for a break in the babysitting
routine. But for the homework to do later that night. But for a crush of pedestrians on the corner of Hillel
Street. But for a hobbling man that she had to loop around.” COLUM MCCANN, APEIROGON 110–11 (2020).
See, e.g., Christina B. Whitman, Government Responsibility for Constitutional Torts, 85 MICH. L. REV. 225 (1986);
Christina B. Whitman, Constitutional Torts, 79 MICH. L. REV. 5 (1980). See generally Rebecca J. Scott, Discerning a
Dignitary Oﬀense: The Concept of Equal “Public Rights” During Reconstruction, 38 L. & HIST. REV. 519 (2020).
Then-Associate Justice William Rehnquist, in his early years on the Court, emphasized in several majority
opinions that the post–Civil War constitutional amendments were intended to provide a civil rights sword as
well as a shield. See Edelman v. Jordan, 451 U.S. 631, 664 (1973) (“[Ex parte Young] has permitted the Civil
War Amendments to the Constitution to serve as a sword, rather than merely as a shield, for those whom
they were designed to protect.”); Fitzpatrick v. Bitzer, 427 U.S. 445, 453 (1976) (“Impressed upon [the states]
by [the Enforcement Clauses] are duties with respect to their treatment of private individuals.”); see also
Monroe v. Pape, 365 U.S. 167 (1961).

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citizens.27 The Court’s exceptionally broad extension of “qualiﬁed immunity” for state
government oﬃcials—and particularly for police oﬃcers—functions very much in the op-
posite direction.28 As in Comcast, the Court seems to delight in establishing abstract legal
barriers to avoid messy facts.29

Before Comcast, alleged racial discrimination as a factor generally was suﬃcient to sur-
vive summary judgment in civil rights claims. Even after the Court began to require dis-
criminatory motive as a prerequisite for a valid Equal Protection claim in the 1970s,30 the
justices nonetheless accepted that a standard of causation far short of “but-for” remains
appropriate in the discrimination context. In Personnel Administrator of Massachusetts v.
Feeney,31 for example, a case about alleged sex discrimination (not race discrimination),
the Court rejected Helen Feeney’s claim: she consistently scored high on qualifying exam-
inations for Massachusetts civil service jobs, yet just as consistently could not land any of
those jobs because competing veterans (almost all of them male) received an “absolute
preference.” Yet Justice Stewart’s majority opinion declared that “the dispositive question”
was whether Ms. Feeney “has shown that a gender-based discriminatory purpose has, at
least in some measure, shaped the Massachusetts veterans’ preference legislation” that
Feeney unsuccessfully challenged.32

In Comcast, the factual allegations cried out for further proceedings in the courts be-
low. Yet the Supreme Court, understandably frustrated by a case that had lingered for over
a decade, ruled that a Rule 12(b)6 dismissal was in order because the plaintiﬀs (hereinafter
ESN) had not alleged “but-for” causation. Never mind that ESN actually made a contract
claim, alleging racial discrimination precisely within the 1866 Civil Rights Act’s guarantee
of an equal right “to make and enforce contracts . . . as is enjoyed by white citizens.”33 The

30
31
32
33

See, for example, Chief Justice Rehnquist’s majority opinions in Alabama Board of Trustees v. Garrett, 531 U.S.
356 (2001) (ﬁnding that saving funds is a suﬃcient justiﬁcation for a state to discriminate based on disability) and
DeShaney v. Winnebago Cty. Soc. Servs. Dept., 489 U.S. 189 (1989) (ﬁnding no state duty to protect a four-year-
old from savage beating by the child’s father because the Fourteenth Amendment extends only to negative rights).
See generally Aviam Soifer, Of Swords, Shields, and a Gun to the Head: Coercing Individuals, but Not States, 39
SEATTLE U. L. REV. 787 (2016); Aviam Soifer, Moral Ambition, Formalism, and the “Free World” of DeShaney, 57
GEO. WASH. L. REV. 1513 (1989).
For a searing summary and critique by Judge Carlton W. Reeves before he granted qualiﬁed immunity, see
Jamison v. McClendon, 476 F. Supp. 3d 386 (S.D. Miss. 2020).
See generally Eric K. Yamamoto, Critical Procedure: ADR and the Justices’ “Second Wave” Constriction of Court
Access and Claim Development, 70 SMU L. REV. 765 (2017); see also Judith Resnik, Contracting Civil Procedure, in
LAW AND CLASS IN AMERICA: TRENDS SINCE THE COLD WAR (Paul Harrington & Trina Jones eds., 2018).
See Washington v. Davis, 426 U.S. 229 (1976).
Personnel Admin’r of Mass. v. Feeney, 442 U.S. 256 (1979).
Id. at 276 (emphasis added).
Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009, 1013 (2020).

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Court simply shifted legal categories. It ignored the clear, protective language of the statute
by moving the entire case from contract to tort law, which seems an innovative form of
legal gaslighting in a textualist era.

The Court’s strikingly brief legal analysis began this way: “It is ‘textbook tort law’ that
a plaintiﬀ seeking redress for a defendant’s legal wrong typically must prove but-for cau-
sation.”34 This assertion is hardly accurate even as a generalization about the multifaceted
ﬁeld of tort law, and it is entirely inaccurate about tort law in the 1860s.35 Nonetheless, the
Court managed to separate—yet also at times to combine—strands from the broad, bold
coverage of the 1866 Civil Rights Act and the considerably diﬀerent reach of Title VII of
the Civil Rights Act of 1964 (at least as the Court has construed it).36

The Ninth Circuit opinion below had created a circuit court split about what must be
alleged and what must be proved to establish an “actionable” claim of racial discrimina-
tion. This entire issue arose only recently, however, as lower-court judges began to reach
restrictive decisions in the Title VII and Age Discrimination in Employment Act of 1967
(ADEA) contexts and then extend them to Sections 1981 and 1982. Mainly, the Title VII
and ADEA decisions involved alleged retaliation in workplace conﬂicts.37 But modern
workplace conﬂicts are a far cry from the brutal realities recently freed slaves faced—in

35
36

Id. at 1014. For this claim, the Court cited its own recent decision in U. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 347 (2013), which in turn cited a textbook: W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS 265 (5th ed.
1984)).
Infra notes 90–102.
Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 415 (1968) (“Thus, although [42 U.S.C.] § 1982 contains none of
the exemptions that Congress included in the Civil Rights Act of 1968 [Fair Housing Act], it would be a serious
mistake to suppose that § 1982 in any way diminishes the signiﬁcance of the law recently enacted by Congress.”).
See, e.g., Theidon v. Harvard Univ., 948 F.3d 477, 505 (1st Cir. 2020) (“With respect to causation, Theidon must
show that Harvard’s desire to retaliate was the but-for cause of the challenged employment action.” (internal
quotation marks omitted)); Natofsky v. City of New York, 921 F.3d 337, 348 (2d Cir. 2019) (“Title VII
retaliation must be proved according to traditional principles of but-for causation” (internal quotation marks
omitted)). Cf. St. Ange v. ASML, Inc., No. 3:10-CV-00079-WWE, 2015 WL 7069649, at *1 (D. Conn. Nov. 13,
2015) (Eginton, J.) (“Defendant argues that, because of the longstanding principle that Section 1981 retaliation
claims are analyzed under the same legal principles as Title VII retaliation claims, Nassar’s but-for causation
standard is equally applicable to Section 1981 retaliation claims. The Court is not persuaded. The problems
that the Supreme Court highlighted in Nassar when analyzing Title VII do not extend to Section 1981.
Indeed, the Court explicitly distinguished Section 1981 as a basis for applying a diﬀerent, more demanding
causation standard to Title VII retaliation claims.”); Babb v. Wilkie, 140 S. Ct. 1168, 1176 (2020) (“Finally, in
[Nassar], we interpreted Title VII’s anti-retaliation provision . . . as requiring retaliation to be a but-for cause
of the end result of the employment decision. . . . That reasoning has no application in the present case. The
wording of § 633a(a)—which refers expressly to the “mak[ing]” of personnel actions in a way that is “free
from any discrimination based on age”—is markedly diﬀerent from the language of the statutes at issue in
Gross and Nassar, and the traditional rule favoring but-for causation does not dictate a contrary result.”).

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fact and in law—in 1866. Moreover, as Justice Frankfurter stated in a diﬀerent, poignant
context: “But history also has its claims.”38

THE TEXT AND HISTORY OF THE CIVIL RIGHTS ACT OF 1866

Remarkably, the Supreme Court in Comcast relied on its own sweeping assumptions about
tort law rather than attending to either the original text or the current statutory language
directly derived from the 1866 statute. Indeed, the Court proceeded without even a hint of
awareness of the well-established history of the Civil Rights Act of 1866 and its important
place in Reconstruction.39 At its core, the Act provided that all citizens were thenceforth to
enjoy “the full and equal beneﬁts of all laws and proceedings for the security of person and
property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and
penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the con-
trary notwithstanding.”40

Rosenberg v. United States, 346 U.S. 273, 310 (1953). Frankfurter explained the signiﬁcance of his dissent, ﬁled
after Ethel and Julius Rosenberg had been executed, as follows: “To be writing an opinion in a case aﬀecting two
lives after the curtain has been rung down upon them has the appearance of pathetic futility. But history also has
its claims. This case is an incident in the long and unending eﬀort to develop and enforce justice according to law.
The progress in that struggle surely depends on searching analysis of the past, though the past cannot be recalled,
as illumination for the future.”
The author was one of thirteen legal historians who, with the help of attorney Eugene R. Fidell, submitted an
amicus curiae brief in this case. Law and History Professors’ Brief as Amici Curiae in Support of Respondents,
Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009 (2020) (No. 18-1171), 2019 WL
4729859. Three leading tort law historians also submitted an amicus curiae brief. Brief of Torts Scholars as
Amici Curiae in Support of Respondent, Comcast, 140 S. Ct. 1009, 2019 WL 4748379. Possibly this article
may seem to be an extended form of sour grapes, yet the Court’s cavalier disregard of the language and
history of such an important statute ought to be a cause for broad concern—even if the Court’s disregard for
history is nothing new. Recently, there have been ﬁve substantial symposia about the Thirteenth Amendment
and the statutes based upon it. The resulting publications may be found at THE PROMISES OF LIBERTY: THE
HISTORY AND CONTEMPORARY RELEVANCE OF THE THIRTEENTH AMENDMENT (Alexander Tsesis ed., 2010), which is
the product of a 2009 symposium jointly sponsored by the University of Chicago and Loyola University,
Chicago; Symposium, Labor Law and the Thirteenth Amendment, 19 NEV. L.J. 365–534 (2018); Symposium,
The Thirteenth Amendment: Meaning, Enforcement, and Contemporary Implications, 112 COLUM. L. REV. 1447
(2012); Symposium, Constitutional Redemption & Constitutional Faith, 71 MD. L. REV. 953 (2012); and
Thirteenth Amendment Symposium, 38 TOL. L. REV. 791 (2007). They have had virtually no impact in the
courts. In addition, Eric Foner, deservedly considered the leading historian of Reconstruction, recently
published two admirably accessible books on the subject, THE SECOND FOUNDING: HOW THE CIVIL WAR AND
RECONSTRUCTION REMADE THE CONSTITUTION (2019), and THE FIERY TRIAL: ABRAHAM LINCOLN AND AMERICAN
SLAVERY (2010). His work also has not gained judicial attention, nor are judges relying on well-known
additional work about Reconstruction by other stellar historians, such as James McPherson and the late Leon
Litwack, John Hope Franklin, and W.E.B. DuBois, as well as by younger experts. There may be disturbing
signs that the Dunning School of Reconstruction historiography is poised for a comeback, notwithstanding
(and perhaps partially in response to) recent possible seeds of national racial reckoning.
Supra note 19.

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The Thirty-Ninth Congress had to pass the Civil Rights Act of 1866 over President
Andrew Johnson’s veto, rejecting his bitter veto message, which fervently embraced a
states’ rights approach to Reconstruction. In fact, this was the ﬁrst time that Congress
overrode a presidential veto of major legislation. The statute declared that all recently
liberated slaves, as well as everyone else born in the United States and its territories (with
the exception of “Indians not taxed”) now were United States citizens.41 It then speciﬁed a
sweeping range of rights in which all citizens would be fully and equally protected by
federal law.42 Many Congressmen enthusiastically celebrated this opportunity to use, on
behalf of freedom, the kind of federal power that had been employed to return fugitive
slaves to their masters. The Thirteenth Amendment’s unprecedented Enforcement Clause
aﬀorded new authority, and many delighted in superseding Chief Justice Taney’s Dred
Scott decision.43

Congress stressed the dramatic need for federal protection of former slaves endan-
gered by those who sought to return them to conditions as close as possible to slavery
itself. In the summer and fall of 1865, the former Confederate states held conventions,
and South Carolina and Mississippi soon led the way in passing stringent Black Codes.

Section 1 began: “That all persons born in the United States and not subject to any foreign power, excluding
Indians not taxed, are hereby declared to be citizens of the United States.” Civil Rights Act of 1866 § 1, 14
Stat. 27.
The breadth of the protection of rights guaranteed by the statute is noteworthy. Following its bold citizenship
provision—which precisely anticipated the ﬁrst sentence of the Fourteenth Amendment that the same
Thirty-Ninth Congress sent to the states for ratiﬁcation less than three months later—the statute continued
with “and such citizens, of every race and color, without regard to any previous condition of slavery or
involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted,
shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to
sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and
to the full and equal beneﬁts of all laws and proceedings for the security of person and property, as is enjoyed by
white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute,
ordinance, regulation, or custom, to the contrary notwithstanding.” Id.
Dred Scott v. Sandford, 60 U.S. 393 (1857) (enslaved party), superseded by constitutional amendment, U.S. CONST.
AMEND. XIV. There is an extensive literature about this Civil Rights Act, including its direct relationship with the
Fourteenth Amendment—through which many in Congress sought to “constitutionalize” that statute so that it
could not be superseded by a subsequent Congress. The same Thirty-Ninth Congress proposed the Fourteenth
Amendment, largely based on the statute. For more than the past half century, a remarkable revision by historians
has convincingly demonstrated how inaccurate—or worse—the previous Dunning School’s “Lost Cause”
interpretation of Reconstruction was. Judges have lagged far behind and/or generally ignored this historical
work. For a careful, clear, and convincing overview, see GEORGE RUTHERGLEN, CIVIL RIGHTS IN THE SHADOW OF
SLAVERY: THE CONSTITUTION, COMMON LAW, AND THE CIVIL RIGHTS ACT OF 1866 (2013); see also, e.g., Aviam
Soifer’s work, including Aviam Soifer, Protecting Civil Rights: A Critique of Raoul Berger’s History, 54 N.Y.U.
L. REV. 651 (1979); Soifer, supra note 2; Aviam Soifer, Protecting Full and Equal Rights: The Floor and More,
in THE PROMISES OF LIBERTY: THE HISTORY AND CONTEMPORARY RELEVANCE OF THE THIRTEENTH AMENDMENT
(Alexander Tsesis ed., 2010); and Aviam Soifer, Federal Protection, Paternalism, and the Virtually Forgotten
Prohibition of Voluntary Peonage, 112 COLUM. L. REV. 1607 (2012).

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These Black Codes, quickly adopted by eight states, severely restricted the rights of the
freedmen and sought to compel them to continue to work under conditions akin to
slavery—often in the same places where they had been slaves.44 Overtly discriminatory
laws were wrapped in the garb of “states’ rights,” the main thrust of President Johnson’s
Reconstruction policy.

Not surprisingly, the Republicans in control of the Thirty-Ninth Congress found such
developments deeply disturbing.45 Many of them—often after speciﬁc mention of the valor
of Black soldiers and the huge number of casualties they had suﬀered during the Civil
War—embraced the concept that allegiance to a government ought to be accompanied by
protection by that government.46 They insisted over and over again that the Civil Rights Act
of 1866 would now guarantee freedom because it aﬀorded all citizens full and equal legal
protection. The statute went so far as to impose criminal liability on those who deprived
others of their rightful equality. The Comcast opinion correctly pointed this out, only to
use it to distinguish away the force of the statute’s provisions.47 Yet, in addition, the 1866
Civil Rights Act oﬀered unprecedented authority to remove cases to federal court if and

See ERIC FONER, THE STORY OF AMERICAN FREEDOM 104 (1998) (“During Presidential Reconstruction—the period
from 1865 to 1867 when Lincoln’s successor, Andrew Johnson, gave the white South a free hand in determining
the contours of Reconstruction—southern state governments enforced this view of black freedom by enacting
notorious Black Codes, which denied blacks equality before the law and political rights, and imposed on them
mandatory year-long labor contracts, coercive apprenticeship regulations, and criminal penalties for breach of
contract.”). The best-known incidents of brutal early mob violence took the form of massacres in early May
1866 in Memphis and in late July 1866 in New Orleans. Considerable publicity about these incidents and
additional widespread violence against Black citizens underscored how desperately newly freed slaves and their
supporters needed federal protection. See generally U.S. CONG, HOUSE SELECT COMM. ON THE MEMPHIS RIOTS,
MEMPHIS RIOTS AND MASSACRES (Arno Press 1969) (1866); TED TUNNELL, CRUCIBLE OF RECONSTRUCTION: WAR,
RADICALISM, AND RACE IN LOUISIANA, 1862–1877, at 103–07 (1984).
See FONER, supra note 44, at 104 (“By 1865, virtually all northerners agreed that property rights in man must be
abrogated, contractual relations substituted for the discipline of the lash, and the master’s patriarchal authority
over the former slaves abolished.”).
This reciprocal concept can be traced at least back to John Locke, and it was repeated often during debates in the
Thirty-Ninth Congress as well as by President Lincoln. The point was underscored when Lincoln asked his
generally quite conservative Attorney General, Edward Bates, for a legal opinion about federal government
duties to protect Black seamen. Bates distinguished between political and civil rights, but he declared “the duty
of allegiance and the right to protection . . . correlative obligations, the one the price of the other.” 10 Op. Att’y
Gen. 382, 395 (1862). For a nearly contemporaneous speech that expressed quite similar views—though deﬁning
rights more broadly—see CONG. GLOBE, 37th Cong., 2d Sess. 1638–40 (1862) (remarks of Rep. Bingham).
Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009, 1015–16 (2020). Even within its
Cruikshank decision, United States v. Cruikshank, 92 U.S. 542, 552, 555 (1876), the Court emphasized this
reciprocal relationship, though tragically the Justices went on to relegate Blacks entirely to the protection of
the states in which they lived.

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when states failed in their duty to enforce the Thirteenth Amendment’s “grand yet simple
declaration of universal freedom.”48

As the core comparator for the civil rights that the statute listed and sought to protect,
Congress clearly and speciﬁcally referred to the rights and immunities of white citizens.
The Thirty-Ninth Congress understood, of course, that white citizens were not former
slaves. Nor were whites being widely victimized through violence and blatant racial dis-
crimination. The statute’s use of the rights of white citizens as its metric meant that ev-
eryone was legally entitled to be treated as well as white citizens were supposed to be
treated—and thereby protected broadly from race-based discrimination.49 It guaranteed a
broad range of rights that included the rights to make and enforce contracts, to own prop-
erty, and to participate fully in the legal system. This pathbreaking federal law guaranteed
that these rights would be protected for citizens “of every race and color,” without regard
to any previous condition of slavery or involuntary servitude.50 Further, all citizens were to
be “subject to like punishment, pains and penalties, and to none other.”51 This bold dec-
laration clearly was to supersede “any law, statute, ordinance, regulation, or custom[] to
the contrary.”52

Naïve as the ambitions of the Thirty-Ninth Congress turned out to be, there was abso-
lutely no indication in the statute that Congress meant to ignore racism where its manifes-
tations combined with other forces. There was no indication that Congress intended to
prohibit only that discriminatory conduct that could be shown to have changed the outcome
of a transaction. Simply put, nowhere did Congress hint at a requirement that a plaintiﬀ
could not invoke the broad protection of the statute absent proof of but-for causation.

50
51
52

One of the most tragic ironies in American constitutional law—and that is saying something, given how many
tragic ironies there are—is that in the Slaughter-House Cases, 16 Wall. (83 U.S.) 36 (1873), Justice Miller’s
majority opinion described the Thirteenth Amendment as “this grand yet simple declaration of the personal
freedom of all the human race within the jurisdiction of this government—a declaration designed to establish
the freedom of four millions of slaves,” id. at 70. Further, Miller declared the “one pervading purpose” at the
foundation of all three post-Civil War Amendments to be “the freedom of the slave race, the security and ﬁrm
establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of
those who formerly exercised unlimited dominion over him.” Id. at 71. Yet this decision did a great deal to
eviscerate the intended protections of section 1 of the Fourteenth Amendment; a series of additional Supreme
Court decisions in the next decade—most prominently the Civil Rights Cases, 109 U.S. 3 (1883)—added
considerably to the Supreme Court’s complicity.
Of course, many took the view that the statute reached and guaranteed protection for the rights of whites as well.
Senator Trumbull, for example, emphasized more than once that the Act “applies to white men as well as to black
men. It declares that all persons . . . shall be entitled to the same civil rights.” CONG. GLOBE, 39th Cong., 1st Sess.
599 (1866).
Civil Rights Act of 1866 § 1, 14 Stat. 27.
Id.
Id.

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Rather, through the 1866 Civil Rights Act, “Congress transformed the common law of civil
rights into the public law of equal citizenship.”53

There can be no question that members of the Thirty-Ninth Congress had a complex
mix of motives, many idealistic and surely some not. They wove a tangled web that in-
cluded, for example, paternalism, the Republican Party’s long-standing faith in free labor,
direct political calculation, and even the desire to keep former slaves from migrating north
by vigorously protecting their rights in the South.54 Classic American optimism also
played a role when the ﬁrst civil rights statute “sought to ﬁll the vacuum surrounding
the legal status of the freedmen (as they were called) and to forestall the eﬀorts of state
legislatures to demote the freedmen to the status of second-class citizens (or worse).”55
There clearly was a need to guarantee the new freedom anchored in the Thirteenth
Amendment, and Congress emphatically rejected President Johnson’s eﬀorts to return
as rapidly as possible to the older normalcy.56

And, despite the Comcast opinion’s pronouncement to the contrary,57 the 1866 Civil
Rights Act explicitly provided for vindication of the rights it protected through civil liti-
gation. Indeed, Section 3 established access to federal district and circuit courts for “all
causes, civil and criminal, aﬀecting persons who are denied or cannot enforce in [the state
courts] the rights secured to them by the ﬁrst section of this act.”58 It is no surprise, then,
that the Supreme Court’s precedents have allowed claims anchored in 42 U.S.C. §§ 1981
and 1982, the Act’s modern remnants, to challenge racial discrimination successfully, even
when brought by private citizens against private parties.59

53
54

RUTHERGLEN, supra note 43, at 4.
See generally ERIC FONER, FREE SOIL, FREE LABOR, FREE MEN (1970); ERIC FONER, THE SECOND FOUNDING: HOW THE
CIVIL WAR AND RECONSTRUCTION REMADE THE CONSTITUTION (2019).
RUTHERGLEN, supra note 43, at 6. Indeed, “[b]efore the act, there were no civil rights in the form of entitlements to
be free from discrimination, the primary sense in which we understand the term today.” Id. at 4. Guaranteeing
freedom from racial discrimination was an idealistic goal, to be sure, and one that remains elusive over a century
and a half later, but the text of that statutory promise—anchored as it was in Congress’s new enforcement power
under the Thirteenth Amendment—never even hinted at a requirement to prove but-for causation of a particular
injury before claiming a violation.

56 WILLIAM R. BROCK, AN AMERICAN CRISIS: CONGRESS AND RECONSTRUCTION, 1865–1867 (1963).
57

Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009, 1015 (2020) (“Nothing in the Act
speciﬁcally authorizes private lawsuits to enforce the right to contract.”).
Civil Rights Act of 1866 § 3, 14 Stat. 27 (emphasis added); see also infra Part II.
Congress repeatedly has disagreed with crabbed constructions by the Supreme Court of civil rights statutes; the
most relevant of numerous examples pertained to the Civil Rights Act of 1991, discussed in Part II infra. The
dialogue between courts and legislatures was celebrated in GUIDO CALABRESI, A COMMON LAW FOR THE AGE OF
STATUTES (1983).

58
59

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Finally, Congress took very seriously the equal rights it sought to enshrine in the Civil
Rights Act.60 Less than a year later, for example, when the lame-duck session of that Thirty-
Ninth Congress confronted the harsh reality of the widespread denial of those rights and
the ineﬀectiveness of the Freedmen’s Bureau in implementing them, it sent Union troops
into the recalcitrant South, which it divided into ﬁve sections under military control.61

II.

TEXT? WHAT TEXT? THE COMCAST DECISION

The Comcast opinion began as follows:

Few legal principles are better established than the rule requiring a plaintiﬀ to estab-
lish causation. In the law of torts, this usually means a plaintiﬀ must ﬁrst plead and
then prove that its injury would not have occurred “but for” the defendant’s unlawful
conduct. The plaintiﬀs before us suggest that 42 U.S.C. § 1981 departs from this tra-
ditional arrangement. But looking to this particular statute’s text and history, we see
no evidence of an exception.62

This remarkable paragraph is startling for a number of reasons, the first being its
conclusory insistence that “this particular statute”—which nowhere looks like, sounds like,
or gives any indication of being a torts provision—can be hijacked by the law of torts. The
second reason is the paragraph’s oversimplification of the law of torts so as to all but
assure error about torts doctrine. Yet the Comcast opinion proceeded with these two
points as its guiding principles.

Justice Gorsuch’s next paragraph brieﬂy summarized some of the facts of the case at
issue, albeit with a clear undertone of impatience. His opinion implied that after negotia-
tions failed, the plaintiﬀs allowed the case to drag on for years, sought an exorbitant amount,
and ought to have accepted Comcast’s reasons for not granting them cable access for their
channels.63 Moreover, though ESN acknowledged that Comcast had asserted legitimate

62
63

See Soifer, supra note 43, at 1608–20 (2012). In banning “voluntary” as well as “involuntary” peonage, the
Thirty-Ninth Congress went signiﬁcantly beyond the text of the Thirteenth Amendment—a clear indication
that the contemporary authors of the constitutional Enforcement Clauses and the statutes Congress based
upon them believed that Congress was empowered to extend federal protection of civil rights, without any
prerequisite of judicial recognition of these rights. But see United States v. Morrison, 529 U.S. 598, 601–02 (2000).
See ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION, 1863–1877, at 244–45. See generally BROCK,
supra note 56.
Comcast, 140 S. Ct. at 1013.
These reasons were the “lack of demand for ESN’s programming, bandwidth constraints, and its preference for
news and sports programming that ESN didn’t oﬀer.” Id. ESN countered that Comcast kept changing its
requirements, granted access to non-minority applicants inconsistently with its announced programming
preferences and bandwidth constraints, and retained employees who made racist remarks during the process.

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business reasons, ESN insisted that these were pretextual and even suggested that Comcast
had paid civil rights groups to oﬀer public support “and to win favor before the Federal
Communications Commission.”64 The Court’s factual summary concluded: “As relevant
here, ESN alleged that Comcast’s behavior violated 42 U.S.C. § 1981(a), which guarantees,
among other things, ‘[a]ll persons . . . the same right . . . to make and enforce contracts . . .
as is enjoyed by white citizens.’”65 This section stated the allegation accurately—there was
no mention of any tort claim.

Once the opinion got into a discussion of the law, Justice Gorsuch became a skillful
magician, drawing the audience’s attention away from the Civil Rights Act of 1866 and
keeping it away—even while ﬂipping a few disjointed provisions into the air. As he ﬂashed
tort terminology and citations that conjured stacks of ancient treatises, the Act that Congress
adopted seemed to disappear. It is hardly a surprise, therefore, that his Comcast opinion,
considered with care, is weirdly untethered from the usual statutory construction anchors.

Unfortunately, the Comcast opinion also shows that Senior Federal Circuit Judge Jon
O. Newman was overly optimistic when he recently stated, “[A]ll federal judges (I have
been one for forty-nine years) begin the task of interpreting a federal statute by examining
the text of the relevant provision.”66 Instead, the Comcast opinion began by entirely ignor-
ing the text of the federal statute, replacing it with an abstract and historically inaccurate
oversimpliﬁcation of nineteenth-century tort law.

This goes beyond a violation of the teachings of “textualism,” as even an opinion by a
judge who embraces the importance of statutory history and court-made doctrine none-
theless would start with the current text of the statute in question. For instance, the Court
long ago directly invoked the Act’s language that addressed racial discrimination in prop-
erty and contract law in applying its protections against racially restrictive covenants.67
Then, in the series of important property and contract decisions launched by Jones v.
Alfred H. Mayer Co.,68 the Court directly applied the Act’s language to contract and

65
66

Id. Comcast well illustrates what is so problematic about overzealous use by district court judges of summary
judgment and related early dismissals, encouraged by the Supreme Court in decisions such as Ashcroft v.
Iqbal, 556 U.S. 662 (2009); see also Yamamoto, supra note 29.
Comcast, 140 S. Ct. at 1013 (quoting 42 U.S.C. § 1981(a)).
Jon O. Newman, The Myths of Textualism and Their Relevance to the ALI’s Restatement of the Law, Copyright, 44
COLUM. J.L. & ARTS 411, 412 (2021). In Medellin v. Texas, 552 U.S. 491, 506 (2008), Chief Justice Roberts similarly
stated, “The interpretation of a treaty, like the interpretation of a statute, begins with its text.”
See Buchanan v. Warley, 239 U.S. 33 (1915) (ﬁnding that statute reinforces Fourteenth Amendment invalidation
of Louisville segregated housing); Hurd v. Hodge, 334 U.S. 24 (1948) (companion case to Shelley v. Kraemer, 334
U.S. 1 (1948), which invalidated restrictive covenant enforcement in District of Columbia on basis of equal
property rights in § 1 of 1866 Civil Rights Act). The statutory numbering was diﬀerent, but the statutory text
was the same.
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968). More precisely, Jones v. Alfred H. Mayer and its progeny
resuscitated 42 U.S.C. §§ 1981 and 1982, the Act’s direct, explicit statutory descendants.

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property matters, with no insertion of a but-for tort concept. Indeed, tort doctrine did not
ﬁgure in those decisions at all.

Despite Justice Gorsuch’s declaration that the Court would reach for clues in its pre-
cedents and the statutory text and history, his opinion proved entirely uninterested in any
of those. He mentioned Jones v. Alfred H. Mayer only en passant,69 thereby escaping the
bounds of its language and holding. Jones, with 42 U.S.C. § 1982 as its basis, invalidated
private racial discrimination in a housing contract. Justice Stewart’s majority opinion
boldly proclaimed:

[The Thirteenth Amendment would be] a mere paper guarantee if Congress were
powerless to assure that a dollar in the hands of a Negro will purchase the same thing
as a dollar in the hands of a white man. At the very least, the freedom that Congress
is empowered to secure under the Thirteenth Amendment includes the freedom to
buy whatever a white man can buy, the right to live wherever a white man can live. If
Congress cannot say that being a free man means at least this much, then the Thir-
teenth Amendment made a promise the Nation cannot keep.70

This reliance on the Thirteenth Amendment and on the statutory definition of the rights
for which it provided the foundation, as well as the rest of Justice Stewart’s opinion,
contrasts dramatically with the Court’s newly imposed requirement that a plaintiff must
prove not only that racial discrimination occurred but that each particular harm the
plaintiff suffered would not have occurred without that discrimination. This new test is
nothing short of an enormous obstacle for any plaintiff. Historians, sociologists,
economists, and journalists report extensively on the myriad economic, social, class,
political, and other causes—public and private—that have helped to establish and nurture
inequality and mistreatment of racial minorities in the United States. A minority
plaintiff—even one who has been the victim of unlawful discrimination—may not always
be able to show that each harmful result of that discrimination would not have occurred
otherwise. Therefore the requirement of but-for proof frequently will have the effect of
allowing perpetrators of racial discrimination to escape liability, shielded by the very
pervasiveness of racism.

Jones and its view of the Civil Rights Act of 1866 proved to be an important precedent
pointing toward the full and equal protection of all American citizens. Within a year, for
example, the Court, by then headed by Chief Justice Warren Burger, extended Jones to

69
70

Comcast, 140 S. Ct. at 1016–17.
Jones, 392 U.S. at 443 (internal quotation marks omitted).

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reach discrimination in the transfer of membership in a recreational association in Sulli-
van v. Little Hunting Park.71 It soon extended the prohibition on private discrimination to
§ 1981.72 The Court held in Runyon v. McCrary in 1974 that the 1866 Act “prohibits pri-
vate, commercially operated, nonsectarian schools from denying admission to prospective
students because they are Negroes.”73 As in the case of many other educational institu-
tions, the segregated private academy sued in Runyon had put forth numerous reasons
for excluding Black children. These reasons ranged from speciﬁc and realistic business
concerns to the complex racial, social, political, class, and educational attitudes of its cli-
entele and on to the complex and varied views of the people who ran the school.74 In other
words, many factors were identiﬁed as contributing to the injury at issue. But discrimina-
tion, by its existence, was actionable. But-for causation was never even mentioned.

Justice Gorsuch claimed to ﬁnd “further clues” from “[t]he larger structure and history
of the Civil Rights Act of 1866.”75 But the “clues” he unearthed were either mythical or
seriously misrepresented in his majority opinion.

As clues, Justice Gorsuch initially oﬀered two remarkable assertions. First: “Nothing in
the Act speciﬁcally authorizes private lawsuits to enforce the right to contract.”76 Second:
“Instead,” he continued, “this Court created a judicially implied private right of action,
deﬁnitively doing so for the ﬁrst time in 1975.”77 (One is left to wonder what criteria dis-
tinguish deﬁnitive Supreme Court decisions from its other precedents.) Justice Gorsuch
used these revisionist assertions as a rationale that tied section 1 of the 1866 Act (the pro-
vision at issue) to the criminal provision in section 2 with its use of the phrase “by reason
of his color or race,” from which he then worked backward to insist on a but-for causation
requirement in section 1.78

71
72

73
74

75
76
77
78

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969).
See Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431, 440 (1973) (“Consequently, our discussion
and rejection of Wheaton-Haven’s claim that it is exempt from § 1982 disposes of the argument that Wheaton-
Haven is exempt from § 1981.”).
Runyon v. McCrary, 427 U.S. 160, 168 (1976).
In addition to identifying these purportedly nondiscriminatory reasons for the exclusions at issue, the defendants
in Runyon made plausible arguments that competing constitutional rights—freedom of association, privacy, and a
parent’s right to direct the education of their children—protected their actions. See id. at 175–79.
Comcast, 140 S. Ct. at 1015.
Id.
Id.
Id. at 1015–16. Aside from the faultiness of the assertions themselves, as explained below—which makes a move
from § 1 to § 2 unnecessary to begin with, this line of logic suﬀers from the additional problem that it would be
entirely reasonable for Congress to require but-for causation for the imposition of criminal liability but not for a
civil violation.

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Text, history, and precedents all demonstrate how misleading Gorsuch’s artful dodging
turns out to be. He entirely missed § 3 of the 1866 Act, which could hardly have been
more clear in establishing federal court jurisdiction for anyone deprived of the protections
enumerated in § 1 (which included making and enforcing contracts). It stated:

That the district courts of the United States within their respective districts, shall
have, exclusively of the courts of the several States, cognizance of all crimes and
oﬀences committed against the provisions of this act, and also, concurrently with
the circuit courts of the United States, of all causes, civil and criminal, aﬀecting
persons who are denied or cannot enforce in the courts or judicial tribunals of the
State or locality where they may be any of the rights secured to them by the ﬁrst
section of this act.79

Thus, the Civil Rights Act of 1866 did authorize private suits to enforce equal contracting
rights. And, as an unsurprising corollary, the Supreme Court did not only in 1975 create a
private right of action to do so. Indeed, the Court had been sustaining civil rights claims
brought by private parties—deﬁnitively—much earlier.80 Comcast’s judicial ﬁat thereby
erased the statutory language of, and decades of precedent under, §§ 1981 and 1982. What
remains is a wholly judicially manufactured barrier to civil rights enforcement.

The second “clue” claimed by Justice Gorsuch turns out to be another non-clue. Near
the end of § 3, the Thirty-Ninth Congress sought to ﬁll any gaps in the law it was pro-
mulgating that could hamper the statute’s ability to vindicate the broad rights it identiﬁed.
Accordingly, Congress made a single mention of “common law”—in no way in conﬂict

Civil Rights Act of 1866 § 3, 14 Stat. 27 (emphasis added). To further illustrate its broad jurisdictional ambition,
§ 3 went on to provide federal jurisdiction for rights denied in the context of the Freedmen’s and Refugee Bureau.
Section 3 also extended federal habeas corpus jurisdiction. Indeed, the Act’s ﬁrst full year in existence saw a
decision allowing private suits to enforce it, handed down by a Supreme Court justice sitting as a circuit court
judge. See In re Turner, 24 Fed. Cas. 337 (C.C.D. Md. 1867) (No. 14,247) (Chief Justice Salmon P. Chase).
See, e.g., Hurd v. Hodge, 334 U.S. 24 (1948), discussed in note 67, supra. Tellingly, when the Supreme Court
considered Jones in 1968, a private lawsuit under 42 U.S.C. § 1982 to enforce the right to purchase property,
it did not even question whether that statute authorized such an action. Rather, it considered the claim
without hesitation and ruled for the Plaintiﬀ. Nor did Justice John Marshall Harlan raise the question in his
strong Jones dissent, even though he was justiﬁably known for his attention to such procedural matters. He
stressed the very recent passage of the Fair Housing Act of 1968, 82 Stat. 73, enacted after the oral argument
in Jones. The Comcast opinion’s citation for the proposition that the Supreme Court ﬁrst recognized a private
right of action to enforce the right to contract in 1975 was “See Johnson v. Railway Express Agency, Inc., 421 U.S.
454, 459 (1975); see also Jett v. Dallas Independent School Dist., 491 U.S. 701, 720 (1989).” But neither of those
opinions supports that proposition; indeed, in Johnson the Court did declare that it was breaking ground, but that
was because it was inferring “a federal remedy against discrimination in private employment on the basis of race,”
421 U.S. at 460 (emphasis added), from a provision that “on its face relates primarily to racial discrimination in
the making and enforcement of contracts.” Id. at 459.

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with the statute’s guarantees—directing that it be used as a gap ﬁller, if needed.81 Justice
Gorsuch leaped from this single reference to the common law as gap ﬁller to the idea of a
broad statutory commitment to tort law and but-for causation—a breathtaking
feat—allowing him to proclaim boldly that but-for causation was a “prerequisite” for a
claim based on the Civil Rights Act of 1866.82

To read the full text of the Civil Rights Act of 1866, however, is to see clearly that
Congress’s central goal was to guarantee federal protection for § 1’s expansive list of rights.
Congress thereby intended to secure “full and equal rights” for newly freed slaves in par-
ticular and indeed for all citizens. Even § 3’s reference to “common law,” which embol-
dened Justice Gorsuch, was couched in further language that aﬃrmed the primacy of “the
Constitution and laws of the United States.” Congress certainly did not intend to place the
post–Civil War promise of freedom at the mercy of the substantive law of each state, many
of which hardly accepted the federal government at all, much less valued federal civil
rights legislation, with their recalcitrance often clearly extending to their judges.

After its “common law” digression, the Comcast Court never returned to the text of the
1866 Civil Rights Act. Rather, for its ﬁnal “clues,” the Court cherry-picked language from
earlier Supreme Court opinions that ostensibly hinted at a but-for causation standard. Yet
none of the referenced opinions held, or even suggested, that but-for causation is required
under the Act.83

The Court next moved to what seems almost an intentionally distracting and ultimately
confusing comparison of very diﬀerent statues from very diﬀerent eras. Relying entirely

82
83

The language was as follows: “[I]n all cases where [the] laws [of the United States] are not adapted to the object, or
are deﬁcient in the provisions necessary to furnish suitable remedies and punish oﬀences against law, the common
law . . . so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended
to and govern said courts in the trial and disposition of such cause . . . .” § 3, 14 Stat. 27 (emphasis added). This
presumably aﬀorded federal courts a quite limited opportunity to develop federal common law under Swift v.
Tyson, 41 U.S. 1 (1842).
Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009, 1016 (2020).
The two cases Justice Gorsuch cited relating to 42 U.S.C. § 1981, Johnson v. Ry. Express Agency, Inc., 421 U.S. 454
(1975), and Gen. Bldg. Contractors Ass’n v. Pennsylvania, 458 U. S. 375 (1982), had nothing to do with causation.
Johnson, discussed supra note 80, concerned statutes of limitation, and General Building Contractors imposed a
“purposeful discrimination” requirement as it rejected vicarious and respondeat superior liability, 458 U.S. 375,
391 (1982) (“We conclude, therefore, that § 1981, like the Equal Protection Clause, can be violated only by
purposeful discrimination.”). Of the three additional decisions Justice Gorsuch cited relating to 42 U.S.C. §
1982 (he asserted that the “Court’s treatment of a neighboring provision, § 1982, supplies a ﬁnal telling piece
of evidence,” Comcast, 140 S. Ct. at 1016), one involved an allegation in which the injury, by deﬁnition, was
entirely due to the discrimination, so there was no reason to comment on causation. Jones v. Alfred H. Mayer
Co., 392 U.S. 409, 412 (1968) (stating that “the petitioners ﬁled a complaint . . . alleging that the respondents had
refused to sell them a home . . . for the sole reason that petitioner Joseph Lee Jones is [African American]”). The
other two did not involve any issue of injury causation (much less suggest a but-for standard), nor did they base
their conclusions on § 1982. See Buchanan v. Warley, 245 U.S. 60 (1917); Runyon v. McCrary, 427 U.S. 160, 172
(1976), discussed supra at note 74.

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on recent decisions construing modern statutes, Justice Gorsuch proclaimed: “This ancient
and simple ‘but for’ common law causation test, we have held, supplies the ‘default’ or
‘background’ rule against which Congress is normally presumed to have legislated when
creating its own new causes of action.”84 The precedential support he oﬀered for this prop-
osition consisted of cases involving Title VII of the Civil Rights Act of 1964 and the Age
Discrimination in Employment Act of 1967, which he characterized as “federal antidis-
crimination laws like § 1981.”85 Within three pages, however, Gorsuch provided a prime
example of having it both ways. In attempting to confront the fact that Congress had re-
pudiated earlier judicial muddying of Title VII and had clariﬁed that “motivating factor”
was the correct standard, he now asserted: “So we have two statutes with two distinct his-
tories, and not a shred of evidence that Congress meant them to incorporate the same
causation standard.”86

In other words, the kinship between the newer civil rights statutes and § 1981 exists
only when the Court wishes to apply its own newly announced default rule. The same
newer statutes and § 1981 are unrelated, however, when the Court wants to ignore the
more generous recent “motivating factor” test and yet insist instead that § 1981 requires
the more stringent “but-for” causation requirement.

Comcast is hardly the ﬁrst time that the Court has narrowly conﬁned statutory civil
rights provisions. After the Court did so repeatedly in the 1970–1980 period, in the 1991
Civil Rights Act87 Congress explicitly rejected many of the Supreme Court’s crabbed con-
structions (and with nary a mention of tort law). Remarkably, the Comcast opinion at-
tempted to make hay of that legislative historical fact, noting that Congress explicitly
stated that the burden of proof was “the motivating factor test” in Title VII cases and add-
ing, “But nowhere in its amendments to § 1981 did Congress so much as whisper about
motivating factors.”88 That observation is accurate as far as it goes, but it proves nothing;
there had been no Supreme Court interpretation of § 1981 that even hinted that the statute

84
85

86
87
88

Comcast, 140 S. Ct. at 1014.
Id. at 1014 (citing Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338 (2013) (Title VII retaliation) and Gross v.
FBL Fin. Servs., Inc., 557 U.S. 167 (2009) (ADEA)). Even putting aside the inconsistency described below, it is
quite an extended stretch to describe these recent decisions as having established a “default” or “background” rule
that should be used to interpret the Civil Rights Act of 1866. It is an additional stretch to blithely lump together
the statutes at issue in these decisions (Title VII of the Civil Rights Act of 1964 and the ADEA) with the Civil
Rights Act of 1866 as “federal antidiscrimination laws like § 1981” (emphasis added), despite the signiﬁcant
diﬀerences—and full century—between them. It takes real temerity (or chutzpah) to assert that Congress is
“normally presumed to have legislated” with the but-for causation rule in mind when there is not a single
hint—and there is plenty of reason to doubt—that the Thirty-Ninth Congress knew of, or even could have
imagined, such a restrictive modern-day limitation.
Id. at 1017.
Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071.
Comcast, 140 S. Ct. at 1018.

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might require but-for causation. There was therefore no narrow judicial interpretation for
Congress—committed in 1991 to broadening civil rights protections—to reject. To infer
anything from Congress’s failure in 1991 to anticipate subsequent decisions that would
begin to identify a but-for requirement for legal claims under the 1866 Civil Rights Act
makes little, if any, sense legally, logically, or even rhetorically. Rather, Congress’s clariﬁ-
cation that discrimination in employment that was only a “motivating factor” violates the
law prohibiting discrimination in employment implies that Congress still believes that ra-
cial discrimination in contracting nonetheless violates federal law.

In similar fashion, the Comcast Court enthusiastically blurred any distinction between
the plaintiﬀ’s need to plead and prove legal harm “because of” the action of a defendant
and the more stringent burden imposed by the but-for requirement. In a confusing par-
agraph that compares alleged harm to a Black person and alleged harm to a white person
and seeks to rely on an “ordinary language” claim, Gorsuch seemed to miss the thrust of
the 1866 Act entirely.89

Finally, in addition to erring by seeking to apply nineteenth-century tort law doctrine
to a claim anchored in the Civil Rights Act of 1866, Justice Gorsuch got the torts doctrine
of that period wrong. Leading historians of American tort law ﬁled an amicus curiae brief
in Comcast in which they bluntly diﬀered with broad claims in the briefs of the Petitioners
and the United States about the historical role and scope of but-for causation in common-
law tort law. Their brief summarized: “19th century tort law featured diﬀerent causation
rules tailored for diﬀerent kinds of cases. Courts adapted causation rules to suit the moral
structure of the tort in question. In the torts most closely analogous to claims under 42
U.S.C. § 1981, . . . courts rejected a but-for requirement.”90 These scholars carefully illus-
trated the limited reach of but-for causation in the mid-nineteenth century. They pointed
out, for example, that some intentional torts did not require even a showing of actual
damage, much less proof of but-for damage causation.91

The opinion stated: “While the statute’s text does not expressly discuss causation, it is suggestive. The guarantee
that each person is entitled to the ‘same right . . . as is enjoyed by white citizens’ directs our attention to the
counterfactual—what would have happened if the plaintiﬀ had been white? This focus ﬁts naturally with the
ordinary rule that a plaintiﬀ must prove but-for causation. If the defendant would have responded the same
way to the plaintiﬀ even if he had been white, an ordinary speaker of English would say that the plaintiﬀ
received the ‘same’ legally protected right as a white person. Conversely, if the defendant would have
responded diﬀerently but for the plaintiﬀ’s race, it follows that the plaintiﬀ has not received the same right as
a white person.” Id. at 1015. Justice Gorsuch seems to miss the simple human truth that if a Black person suﬀers
an adverse action partially motivated by animus toward Black people, that person is not being treated the same as
a white person would have been. That cannot, by deﬁnition, happen to a white person.
Brief of Torts Scholars as Amici Curiae in Support of Respondent, Comcast, 140 S. Ct. at 1018 (No. 18-1171), 2019
WL 4748379, at *1.
See id. at *6.

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An egregious example of the improvident disregard for the torts scholars’ history—and
the law—jumps out from Justice Gorsuch’s citation to Francis Hilliard’s 1859 The Law of
Torts or Private Wrongs. He cited to pages 78–79 of that treatise as ostensibly supporting
the proposition that “the common law in 1866 often treated a showing of but-for causa-
tion as a prerequisite to a tort suit.”92 Yet several pages earlier in that very treatise, begin-
ning on page 74, Hilliard included a section explaining the principle that “in case[s] of
wrong or violation of private right, damage will be presumed.”93 Hilliard provided a pleth-
ora of examples, including a case in which liability was found for “refusing a vote,” even
“though the candidate voted for was elected.”94 In other words, when an individual alleged
a violation of his basic rights, no showing of but-for causation of a concrete injury was
required.95

The briefs of the Petitioners and the United States relied heavily on articles by turn-of-
the-(last)-century Harvard Law School Professor Jeremiah Smith. As the torts scholars
made clear, however, “[d]iscontent with the but-for approach led Smith to articulate a dif-
ferent test altogether.”96 In fact, Smith declared that when there were multiple identiﬁable
causes, a cause “must have been a substantial factor in producing the damage complained
of.”97 Further, the torts scholars made clear that the Petitioners’ claim that “the First
Restatement of Torts adopted the but-for test” was not merely misleading: it was “simply
wrong.”98

92
93
94

96
97

Comcast, 140 S. Ct. at 1016.
1 FRANCIS HILLIARD, THE LAW OF TORTS OR PRIVATE WRONGS 74 (3d ed. 1866).
Id. at 75; see also Brief of Torts Scholars as Amici Curiae in Support of Respondent, Comcast, 140 S. Ct. at 1018
(No. 18-1171), 2019 WL 4748379, at *3–4.
The scholars pointed to a related contemporary case in which “a colored woman” was wrongfully denied seating
in the “ladies car” of a train. The Illinois Supreme Court upheld the award of $200 in damages, reasoning that “[i]f
the party in such case is conﬁned to the actual pecuniary damages sustained, it would, most often, be no
compensation at all, above nominal damages, and no salutary eﬀect would be produced on the wrong doer by
such a verdict.” Rather, that court held, “the party may recover . . . something for the indignity, vexation and
disgrace to which the party has been subjected.” Id. at *10 (citing Chi. & Nw. Ry. Co. v. Williams, 55 Ill. 185, 190
(1870)).
Id. at *15.
Id. (citing Jeremiah Smith, Legal Cause in Actions of Tort, 25 HARV. L. REV. 303, 309 (1912) (emphasis added by
Torts Scholars)).
Id. at *16. As the scholars explained more fully, “The ﬁrst Restatement of Torts, promulgated by the American
Law Institute in 1934, adopted Smith’s and [Leon] Green’s ‘substantial factor’ approach. Petitioner contends that
the ﬁrst Restatement conﬁrmed the role of but-for causation as the sine qua non of liability at common law. But
the statement in Petitioner’s brief is simply wrong. The First Restatement adopted the substantial factor approach,
not the but-for test, as its basic rule of causation.” Id. (internal quotation marks and citations omitted).

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Actually, when the ﬁrst American treatise writers began to collect and describe tort
law, precisely in the era of the 1866 Civil Rights Act, they simply did not mention but-
for causation.99 The limited support that the Comcast Court could ﬁnd for its sweeping
tort law oversimpliﬁcation came from an 1890s treatise, by which time both the country
and tort law had changed substantially from the immediate post–Civil War period. In the
same paragraph, Justice Gorsuch relied on an important recent article about tort law by
widely respected legal historian G. Edward White to support the Court’s assertion that
“the common law in 1866 often treated a showing of but-for causation as a prerequisite
to a tort suit.”100 White, however, did not say that: rather, his entire article emphasized
major changes in tort doctrine in the years after 1870.101

If the Supreme Court is going to insist on shoehorning the Civil Rights Act of 1866
into tort law doctrine from that period, at a minimum it should correctly state that doc-
trine. Even tort law from that time appears to have recognized the need to address inten-
tional and dehumanizing action whenever it occurred. Certainly, we should—in applying a
statute written for precisely that purpose—do at least that much today.

III.

TEXTUALISTS AND THE 2019 SUPREME COURT TERM

Initial summaries called the October 2019 Term, during which the barely noticed Comcast
decision was handed down in March, “the most consequential term in recent memory”102

100

101

102

See FRANCIS HILLIARD, THE LAW OF TORTS (1859, 1861, 1866); CHARLES G. ADDISON, WRONGS AND REMEDIES: THE LAW
OF TORTS (1860). These treatises demonstrated that during that period, American torts cases generally mixed
actual and proximate cause. In a later (1874) version of Hilliard’s treatise, he hinted at analysis akin to but-
for causation, but his primary citation in that discussion was to Tutein v. Hurley, 98 Mass. 211 (1867), a case
in which it was clear that the defendants’ actions did pass the but-for causation test, but the Supreme Judicial
Court of Massachusetts aﬃrmed a judgment in their favor for lack of proximate causation. The ruling mentioned
neither the words “but-for causation” nor even the concept of a single necessary prerequisite akin to the Court’s
but-for requirement in Comcast. Allan Ching, Second Year Seminar paper, Spring 2021, on ﬁle with the
American Journal of Law and Equality.
Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009, 1016 (2020) (citing G. Edward
White, The Emergence and Doctrinal Development of Tort Law, 1870–1930, 11 U. ST. THOMAS L.J. 463 (2014)).
Even the article’s title plainly indicated its inapplicability to 1866. Throughout his essay, White emphasized
major doctrinal changes in tort law brought about by industrialization and a concomitant sharp rise in
accidents that involved machines. Torts, he explained, changed substantially after 1870 from “an amorphous
collection of civil actions not arising out of contract” to “an integrated subject, one that rapidly came to be
treated as a basic common law ﬁeld.” G. Edward White, The Emergence and Doctrinal Development of Tort
Law, 1870–1930, 11 U. ST. THOMAS L.J. 463, 463 (2014).
Adam Liptak, In a Term Full of Major Cases, the Supreme Court Tacked to the Center, N.Y. TIMES ( Jul. 10, 2020),
https://www.nytimes.com/2020/07/10/us/supreme-court-term.html.

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and the one in which the Supreme Court “truly became the Roberts Court”103 and Chief
Justice Roberts became “the most powerful Chief Justice since at least 1937.”104 The re-
lief among most leading commentators as the Court handed down a number of major
decisions seemed palpable. Sadly, the Term also proved to be Justice Ginsburg’s last, and
her death in September 2020 changed everything, as the rapid conﬁrmation of Justice
Amy Coney Barrett suggested the end of the “Roberts Court” era.

The earlier positive commentary about the 2019 Term came about largely because the
Court did not defer to President Donald Trump’s sweeping claims of presidential privi-
lege,105 did not overrule its own recent precedent that somewhat constrained the authority
of states to impose major burdens on abortions,106 and used an administrative law
arbitrary-and-capricious analysis to stop the Trump administration eﬀort to deport immi-
grants previously protected by their DACA status.107 In addition, many commentators
warmly embraced several textualist decisions; they were pleasantly surprised, for example,
when Justice Gorsuch’s textualist interpretation of the word “sex” in Title VII meant that
the Court protected LGBTQ workers, at least from overt employment discrimination.108
On the other hand, a majority of the Justices continued to embrace and even to extend a
remarkably laissez-faire attitude toward state-imposed burdens on the right to vote.109

To the delighted surprise of environmentalists, close attention to the text of the federal
Clean Water Act helped the Court decide that Maui County in Hawai‘i violated the Act by

103

104

105
106
107
108

109

The CBS Mornings Podcast, Supreme Court Wrap Up: How It Truly Became the Roberts Court, CBS NEWS ( July
2020), https://podcasts.apple.com/us/podcast/supreme-court-wrap-up-how-it-truly-became-the-roberts-ourt
/id1157631148?i=1000485015889. How the Court reached unanimity in Comcast remains a puzzle, though
the apparent perception that it was a minor case might have had considerable collegial appeal. Even Justice
Ginsburg’s separate concurrence emphasized only that the decision discussed, but did not resolve, whether it
covered the contract-formation process as well as the ﬁnal decision to enter a contract.
Adam Liptak, John Roberts Was Already Chief Justice. But Now It’s His Court, N.Y. TIMES ( Jun. 30, 2020), https://
www.nytimes.com/2020/06/30/us/john-roberts-supreme-court.html.
See, e.g., Trump v. Vance, 140 S. Ct. 2412 (2020); Trump v. Mazars USA, LLP, 140 S. Ct. 2019 (2020).
See June Med. Servs. LLC v. Russo, 140 S. Ct. 2103 (2020).
See Dept. of Homeland Sec. v. Regents of Univ. of Cal., 140 S. Ct. 1891 (2020).
See Bostock v. Clayton County, 140 S. Ct. 1731 (2020). In that case, Justice Gorsuch’s majority opinion held that
an employee ﬁred for being LGBTQ was ﬁred on account of her sex—even if the employee would likely not
characterize it that way in ordinary conversation. Justices Alito and Kavanaugh each dissented forcefully in
opinions that, combined, ran for 135 pages (in the slip opinions), including appendices.
See, e.g., the Court’s startling decision overruling the district court and allowing Wisconsin to reject absentee
ballots in its April 2020 primary despite serious obstacles and health risks presented by COVID-19. Republican
Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020). In Brnovich v. Democratic Nat’l Comm., 141 S.
Ct. 2321 (2021), Justice Alito’s opinion for the Court accepted newly enacted Arizona restrictions on voting,
despite § 2 of the Voting Rights Act of 1965, as amended in 1982. After coolly proclaiming that “every
voting rule imposes a burden of some sort,” id. at 2338, Justice Alito declared that Arizona’s new burdens on
the right to vote were not “undue burdens” and had “a long pedigree” or were “in widespread use in the United
States,” id. at 2339.

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pumping partially treated pollutants into wells, from which the pollutants entered the
groundwater and then emptied into the Paciﬁc Ocean.110 Writing for the 6–3 majority,
Justice Breyer explained that the case boiled down to a key wording issue: “The linguistic
question here concerns the statutory word ‘from.’”111

Undoubtedly the most striking example of commitment to text without regard to prac-
tical results occurred on the Term’s ﬁnal day, in Justice Gorsuch’s decision for the 5–4
majority in McGirt v. Oklahoma.112 Over strong dissents pointing to the decision’s broad
potential to create real-world problems, the Court held that the 1866 Treaty between the
federal government and the Creek Indians really did mean what it said. There had never
been textual exceptions to the treaty’s provisions, Gorsuch explained; therefore, most of
the eastern half of Oklahoma remains Indian Territory in the context of jurisdiction over
major crimes involving American Indians.113

These examples illustrate that the Court’s textualism can prove to be double-edged, as
well as unpredictable. It seems that there is textualism, and then there is textualism.114

114

110

County of Maui v. Haw. Wildlife Fund, 140 S. Ct. 1462 (2020). Justice Kavanaugh ﬁled a separate concurrence;
Justice Thomas dissented, joined by Justice Gorsuch; and Justice Alito ﬁled a separate dissent. Maui’s county
council had voted to settle the case before the Supreme Court ruled, but Maui’s mayor refused. See, e.g., Nick
Grube, US Supreme Court Hears Maui Pollution Case as Mayor, Council Fight Continues, HONOLULU CIVIL BEAT
(Nov. 6, 2019), https://www.civilbeat.org/2019/11/us-supreme-court-hears-maui-pollution-case-as-mayor
-council-ﬁght-continues/.
111
County of Maui, 140 S. Ct. at 1470.
112 McGirt v. Oklahoma, 140 S. Ct. 2452 (2020).
113

Justices Ginsburg, Breyer, Sotomayor, and Kagan joined Gorsuch’s majority opinion. Chief Justice Roberts
dissented, joined by Justices Alito, Kavanaugh, and Thomas (except for footnote 9), and Thomas also ﬁled a
dissent. Gorsuch’s opinion bristled with pithy statements that should have been relevant to his Comcast
opinion, e.g.: “[J]ust as wishes are not laws, future plans aren’t either,” id. at 2464; Oklahoma should not be
“substituting stories for statutes,” id. at 2470; and “the magnitude of a legal wrong is no reason to perpetuate
it,” id. at 2480.
See generally Tara Leigh Grove, Which Textualism?, 134 HARV. L. REV. 265 (2020). Perhaps the most striking
example of opportunistic textualism was Justice Scalia’s statement for the majority in District of Columbia v.
Heller, 554 U.S. 570, 577 (2008): “The Second Amendment is naturally divided into two parts: its prefatory
clause and its operative clause.” This announcement—though Scalia and other textualists often deride
references to “natural rights” or “natural justice”—allowed Scalia to divide and conquer. He could relegate
the ﬁrst clause concerning “a well-ordered militia” to the shadows, while the operative clause gave the
majority a dubious textual handle for its holding, reversing long-standing precedents, that the Second
Amendment embodied individual rights. The Cruikshank decision, United States v. Cruikshank, 92 U.S. 542,
552 (1876), for example, emphatically rejected this concept when the Court invalidated the rare federal
conviction of the white leaders of a brutal mass killing of disarmed Black people in Colfax, Louisiana. Chief
Justice Waite’s opinion declared that, notwithstanding the Fourteenth Amendment, Barron v. Mayor & City
Council of Baltimore, 7 Pet. (32 U.S.) 243 (1833), continued to bar application of the federal bill of rights to
the states. See supra note 22. Nonetheless, McDonald v. City of Chicago, 561 U.S. 742 (2010), extended Heller,
and the Court declared this individual Second Amendment right to be “fundamental” and therefore applicable to
the states. See generally Aviam Soifer, Text-Mess: There Is No Textual Basis for Application of the Takings Clause
to the States, 28 U. HAW. L. REV. 373 (2006).

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A COMCAST CASE STUDY

Babb v. Wilkie,115 for instance, displayed a textual approach nearly opposite to that in
Comcast, though it is the decision most closely related to Comcast in the 2019 Term. Ul-
timately, the close but strained textual analysis in Babb led to a ﬁnding of liability, though
it also allowed the majority to deny an employee any practical remedy as the victim of
discrimination. To be fair, Justice Alito’s opinion did identify the intended meaning of
the statute at issue, though he managed to turn this into a Pyrrhic victory at best.

Faced with a straightforward question of what it means when a law requires that fed-
eral personnel actions “shall be made free from any discrimination based on age,”116
Alito’s answer in Babb could be read as a parody of textualism. In delving into the meaning
of “free from,” Alito invoked four dictionaries. He added a discussion of the diﬀerence
between adjectival and adverbial clauses and cited a 1979 version of Black’s Law Dictionary
to declare that the “imperative mood” (when a statute uses the word “shall”) “denot[es] a
duty.”117

Such belabored granularity seemed unnecessary in Babb, but it did lead to the Court’s
convincing interpretation of the federal-sector provision of the ADEA holding that a
plaintiﬀ is not required to show but-for causation (i.e., that a challenged adverse personnel
decision would not have occurred but for the alleged discrimination). That is, because
Congress required that when federal agencies make personnel decisions they must do
so free from age discrimination, Alito explained, a federal employee who alleges age dis-
crimination need not prove that age discrimination dispositively led to the alleged dis-
criminatory decision to prove a violation.118

In stark contrast to the Court’s approach in Comcast, Babb began with the statute’s
statement that “[a]ll personnel actions . . . shall be made free from any discrimination
based on age” and then moved on to a clear rule: “If age discrimination plays any part
in the way a decision is made, then the decision is not made in a way that is untainted
by such discrimination.”119 This clarity in textual analysis highlights the analogous failure
in Comcast. A faithful reading of the Civil Rights Act of 1866 could hardly ignore its pro-
claimed commitment that “[a]ll persons . . . shall have the same right . . . to make and
enforce contracts . . . as is enjoyed by white citizens.”120 This does not mean that racial
discrimination claims always win, but, as in Babb, alleged discrimination in the process of
contracting ought to trigger careful judicial scrutiny of the factual context.

115
116
117
118

119
120

Babb v. Wilkie, 140 S. Ct. 1168 (2020).
Id. at 1171 (citing 29 U.S.C. § 633a(a)).
Id. at 1172, 1176.
Id. at 1174. Even as Justice Alito reached a better result on the but-for causation question than he did in Comcast,
he cited Comcast as additional support for the dubious proposition that “[i]n common talk, the phrase ‘based on’
indicates a but for causal relationship.” Id. at 1173 (quoting Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47 (2007)).
Id. at 1177–78.
42 U.S.C. § 1981.

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After initially making Comcast look bad by comparison, however, Babb added two fur-
ther steps that obfuscated, if they did not entirely undercut, the decision’s initial belabored
but accurate reading of the ADEA. First, the Court used but-for causation to distinguish
between a situation in which “age [is] a but-for cause of diﬀerential treatment” and one in
which “age [is] a but-for cause of the ultimate decision.”121 Indeed, Justice Alito declared
that “[s]ection 633a(a) requires proof of but-for causation, but the object of that causation
is ‘discrimination,’ i.e., diﬀerential treatment, not the personnel action itself.”122

And then, with an additional turn of the screw, Alito in eﬀect took away everything his
Babb opinion had just given. Without fanfare, Alito’s majority opinion quickly went from
eschewing but-for injury causation as a requirement for ﬁnding a violation of the federal-
sector provision to embracing but-for causation as a requirement for meaningful relief.
The Court declared that a well-settled “default rule” ought to apply because “recovery
for wrongful conduct is generally permitted only if the injury would not have occurred
but for that conduct.”123 For the victim of age discrimination to obtain actual remedial
relief, the Babb Court invoked its own judge-made rule that victims of discrimination
must meet the heavy, and often fatal, burden of proving that the harm they suﬀered would
not have occurred “but for” the forbidden discrimination.124

Thus, Alito proclaimed, “§ 633a(a) plaintiﬀs who demonstrate only that they were sub-
jected to unequal consideration cannot obtain reinstatement, backpay, compensatory
damages, or other forms of relief related to the end result of an employment decision.”125
This is because, he explained, “[t]o obtain such remedies, these plaintiﬀs must show that
age discrimination was a but-for cause of the employment outcome.”126

Babb’s contrast with the actual text and the entire approach of the 1866 Civil Rights
Act could hardly be more pronounced. The very title of the 1866 Act was “An Act to

121
122
123

124
125
126

Babb, 140 S. Ct. at 1174.
Id. at 1176.
Id. at 1172. The citation that follows is: “See, e.g., University of Tex. Southwestern Medical Center v. Nassar, 570
U.S. 338, 346–347 . . . (2013).” By the time Babb reached the Supreme Court, it, like the Nassar case, involved
only a Title VII retaliation claim. Justice Ginsburg accepted Nassar as precedential in her concurrence in
Comcast, though in Nassar itself she had written a powerful dissent, joined by Justices Breyer, Sotomayor,
and Kagan. See Nassar, 570 U.S. at 363.
Babb, 140 S. Ct at 1177.
Id.
Id. at 1177–78. After invoking “traditional principles of tort and remedies law,” id. at 1178, Justice Alito tried to
explain further why “but for causation” must remain essential for practical results: “Remedies should not put a
plaintiﬀ in a more favorable position than he or she would have enjoyed absent discrimination. But this is
precisely what would happen if individuals who cannot show that discrimination was a but-for cause of the
end result of a personnel action could receive relief that alters or compensates for the end result.” Id. The
consolation prize for a victim of discrimination who cannot prove but-for causation might be “injunctive or
other forward-looking relief.” Id.

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A COMCAST CASE STUDY

protect all Persons in the United States in Their Civil Rights, and Furnish the Means of
their vindication.” And the Thirty-Ninth Congress speciﬁcally did not separate rights and
remedies. Rather, at the end of § 1’s wide-ranging list of speciﬁc civil rights, Congress
concluded that everyone covered by the Act “shall be subject to like punishment, pains,
and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the
contrary notwithstanding.”127

Together Comcast and Babb starkly illustrate how justices can cloak themselves in the
disguise of textualism, seeking to look like strict English teachers rigidly following the rules
of language. Actually, they seem somewhat more like savvy communications consultants,
skilled at manipulating language to serve their objectives. Writing for the Court, Justices
Gorsuch and Alito joined each other’s opinions in these two decisions only two weeks
apart. Comcast imposed but-for injury causation as a condition for liability under a statute
whose text did not in any way oﬀer a basis for this conclusion. Babb, through its almost
excruciating attention to statutory text, determined that but-for injury causation could not
be a condition for liability for a discriminatory internal process—which, of course, is very
diﬃcult to prove—though but-for causation still must be proved to remedy a discrimina-
tory result. Both decisions denied relief. Together, their results illustrate the alarming ma-
nipulability of what purports to be a judicial commitment to abide by the constraints of
textualism. They also underscore how inpenetrable textualism can be to noninitiates. This,
too, helps explain the appeal of textualism masquerading as transparency to satisfy mem-
bers of the public who long for ﬁxed, clear answers to complex legal questions.

CONCLUSION

Justice Gorsuch’s eloquence and his commitment to an 1866 text in McGirt v. Oklahoma
has quickly and rightfully become famous. His majority opinion began: “On the far end of
the Trail of Tears was a promise. . . . Because Congress has not said otherwise, we hold the
government to its word.”128

When slavery ended, the federal government made another promise in 1866. The Civil
Rights Act of 1866 committed the nation to protect former slaves, and to assure them—as
very recent members of the group “citizens”—a formal, national guarantee of the protec-
tion of “full and equal beneﬁt of all laws and proceedings for the security of persons and
property.”129 The Jones Court accurately characterized this Act as a “sweeping” law clearly

Civil Rights Act of 1866 § 1, 14 Stat. 27.

127
128 McGirt v. Oklahoma, 140 S. Ct. 2452, 2459 (2020).
129

Civil Rights Act of 1866 § 1, 14 Stat. 27.

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designed to “break down all discrimination between black men and white men” in “basic
civil rights.”130

Tragically, this early promise had an extremely short shelf life. Early commitments
during Reconstruction rapidly crumbled—and the Supreme Court itself aided and abetted
the multipronged, successful sabotage of the initial promise. A return to the normalcy of
virulent racism quickly did more than merely relegate the ﬁve major civil rights statutes
passed between 1866 to 1875 to the proverbial back burner—normal racism kicked them
out of the kitchen and into the cold.

The members of the Thirty-Ninth Congress undoubtedly were naïve in their hope for
acceptance and implementation of the bold statutory promise they made through the 1866
Civil Rights Act. They were overly optimistic about obedience to, and enforcement of, the
constitutionalized version of the 1866 Civil Rights Act in the text of the Fourteenth
Amendment, which they sent to the states in June 1866—shortly after they had overridden
President Johnson’s veto to make the Civil Rights Act law. The 1866 Act’s words certainly
have not been followed much, yet they provide a statutory text that remains on the books
and deserves attention now. It merits interpretation in a manner consistent with its words,
its intent, and its historical context. Congress sought to protect all Americans from a range
of broad and often vicious actions used to attack the hard-earned freedom that quickly
followed and built upon the Civil War victory. The Civil Rights Act of 1866 justly was cel-
ebrated as a major departure from existing law. It was explicit in saying that its provisions
were to supersede “any law, statute, ordinance, regulation, or custom, to the contrary[.]”131
To undermine it through a deeply anachronistic causation rule is to defy both history
and text.

The resuscitation of the 1866 Civil Rights Act, which began in the 1960s, included
broad statements declaring that the Act’s guarantee of equal rights should not be under-
mined through obfuscation. In Comcast, the Court rejected a causation standard that Con-
gress prescribed in 1991 for employment discrimination cases, a test much more easily
met than the but-for causation standard the Court seemed to impose out of thin air.132
It is a bitter irony that, in explaining this rejection in Comcast, Justice Gorsuch declared:
“[T]o engraft a test from a modern statute onto an old one would thus require more than
a little judicial adventurism, and look a good deal more like amending a law than inter-
preting one.”133 A shell game that cleverly hides the target dishonors both the actual
statute and the appropriate judicial role.

130

131
132
133

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 432–33 (1968), quoted in Comcast, 140 S. Ct. at 1020 (Ginsburg, J.,
concurring).
Civil Rights Act of 1866 § 1, 14 Stat. 27.
Supra notes 86–88 and accompanying text.
Comcast Corp. v. Nat’l Ass’n of African Am.–Owned Media, 140 S. Ct. 1009, 1017 (2020).

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As developed above, Gorsuch’s opinion engrafted an ahistorical test onto a major stat-
ute that has a proud origin story. The but-for injury causation test—overused, widely mis-
understood, and subject to distortion—lacks any basis whatsoever in the Civil Rights Act
of 1866. Racial discrimination in many contexts, including contract formation, was the
clear target of the 1866 Act, and racial discrimination remains much too pervasive to
be hidden behind a convoluted judicial barrier. Comcast’s intricate manipulation demeans
the text it purports to interpret and reneges on its vital promise. The decision also dis-
honors history. In McGirt, the majority insisted that the Court “ought to hold the govern-
ment to its word.” So should the rest of us.134

And hope remains.135 As Congress demonstrated—at least to a limited extent—in the
Civil Rights Act of 1991, our elected representatives retain the constitutional authority to
advise both the Court and the country that Congress’s words did mean what they said.
The nation has paid an incalculable price, across more than 150 years, as the Supreme
Court has repeatedly ignored or undermined the bold promise of the Civil Rights Act
of 1866—as well as the statute’s direct anticipation of giving legally consequential meaning
to the “protection” element of “equal protection.”

The unredeemed guarantee of the “full” as well as the “equal beneﬁts of all laws and
proceedings for the security of persons and property” nonetheless survives, still to be made
operative through close attention to statutory text and history. Full redemption remains
impossible. Yet much still can be done to implement an extraordinary and venerable
promise. It remains crucial in the never-ending pursuit of justice.

134

135

The prodigious lifetime of work by my colleague, Charles R. Lawrence III, has included recently, e.g., his
Forbidden Conversations: On Race, Privacy, and Community (A Continuing Conversation with John Ely on
Racism and Democracy), 114 YALE L.J. 1353 (2005); his Georgetown Law School 2017 Commencement
Address; and his Implicit Bias in the Age of Trump, 133 HARV. L. REV. 2304 (2019–2020). Chuck Lawrence’s
scholarship as well as his activism underscores how crucial racial reckoning is for everyone—as well as how
diﬃcult it will be to achieve even limited success.
Larry Yackle noted, “We know, as the world is beginning to understand, how fragile is our way of life and what
dreadful chances we take when we triﬂe with its basic institutions.” LARRY W. YACKLE, RECLAIMING THE FEDERAL
COURTS (1994). And he believed the situation for essential constitutional rights was dire twenty-ﬁve years ago.
Nonetheless, he expressed hope. For a brief discussion of the distinction between optimism and hope, see Aviam
Soifer, Optimism v. Hope: Larry Yackle, In Fairness, 98 B.U. L. REV. 335 (2018).

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