Ian Millhiser, Vox, March 25, 2020

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Yet even as the justices seek shelter from a pandemic, they still managed to hand down five opinions on Monday. One of them, in the case Comcast Corp. v. National Association of African American Media, is a blow for the civil rights community — and a potential harbinger for civil rights cases to come.

The case involves a dispute between the cable TV company Comcast and a business that alleged the telecommunications conglomerate refused to carry its channels because it disfavored “100% African American-owned media companies.” (Comcast Corporation, the defendant in this lawsuit, is an investor in Vox Media.)

The Comcast decision, according to NAACP President and CEO Derrick Johnson, “is a huge step backward in our march toward achieving equal opportunity for all.” He warned that the Court’s decision will “significantly restrict the ability of discrimination victims to prove their claims under one of our nation’s premier civil rights laws.”

Viewed through a narrow lens, Comcast is only an incremental loss for the civil rights community. It extends two prior decisions that made it harder for some plaintiffs to prevail in federal court. But the decision is significant not so much because of the particular holding handed down by the Court, but because of the widespread support for this result among the justices.

The decision was unanimous, which suggests that the Court’s liberal minority has given up on an important fight that was hotly contested just a few years ago. More broadly, the Court’s consensus in Comcast signals that the liberal justices may have shifted into triage mode, accepting that some incursions on civil rights are no longer worth resisting in a Court that’s lurched hard to the right.

The case arose out of a Reconstruction-era law providing that everyone in the United States shall have the same right “to make and enforce contracts … as is enjoyed by white citizens.”

In Price Waterhouse v. Hopkins (1989), the Supreme Court held that victims of employment discrimination could sometimes prevail in a lawsuit against their employer if they showed that the employer acted with “mixed motives” — that is, if the employer took action against the plaintiffs for a combination of reasons, only some of which were unlawful. Price Waterhouse involved Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on “race, color, religion, sex, or national origin.”

But the Court’s taken a sharp right turn since Price Waterhouse. And it’s twice refused to apply this mixed-motive rule beyond Title VII’s ban on employment discrimination. Both of those more recent decisions, however, were 5-4 votes decided along familiar ideological lines.

Comcast is now the third case to rule against mixed-motive suits — that is, the Court held that plaintiffs alleging contract discrimination may not bring a mixed-motive lawsuit. The outcome is not particularly surprising, given the Court’s conservative majority.

What is surprising is that the Court’s decision in Comcast is unanimous (although Justice Ruth Bader Ginsburg wrote a separate opinion warning that the Court should not make further incursions on the ban on contract discrimination). Comcast, in other words, appears to be a sign that the Court’s liberal minority has decided that their best response to a hardline conservative majority is to throw in the towel on some fights, in order to preserve their ability to raise the alarm in other ones.

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