My initial read of the Court’s rulings in Gomez-Perez v. Potter and CBOCS West, Inc. v. Humphries is that they provide distressing case studies of how easily incoherent liberal precedents can become entrenched. Here’s a very brief sketch, with some further comments in a follow-up post:

1. In 1969, in Sullivan v. Little Hunting Park, a “highly elliptical” (in the charitable words of dissenting justice Harlan) majority opinion by Justice Douglas ruled that a white plaintiff had “standing” to bring an action under 42 U.S.C. 1982 for “an alleged discrimination against a Negro family in the use of certain community facilities.”

2. In 2005, in Jackson v. Birmingham Board of Education, the Court, by a 5 to 4 vote, ruled that Title IX—which prohibits recipients of federal education funding from discriminating “on the basis of sex”—authorizes a private cause of action for claims of retaliation “where the funding recipient retaliates against an individual because he has complained about sex discrimination.” Justice O’Connor’s majority opinion read Sullivan as standing for the proposition that “a general prohibition on racial discrimination [covers] retaliation against those who advocate the rights of groups protected by that prohibition,” and it implausibly imputed that same reading to the Congress that enacted Title IX three years after Sullivan was decided. According to O’Connor, “retaliation is discrimination ‘on the basis of sex’ because it is an intentional response to the nature of the complaint: an allegation of sex discrimination.”

In his dissent, Justice Thomas explained his position that a “claim of retaliation [for having complained about sex discrimination] is not a claim of discrimination on the basis of sex” and that a retaliation claim is instead “a claim that aids in enforcing another separate and distinct right.” He also presented Sullivan as a holding about a white lessor’s “standing to assert the right of a black lessee to be free from discrimination,” not about a freestanding claim of retaliation. Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy joined Thomas’s dissent.

3. In Gomez-Perez v. Potter, Justice Alito relied on Jackson—and on Jackson’s reading of Sullivan—to hold that a federal employee who alleges that she has been retaliated against for filing an age-discrimination claim may bring a retaliation claim under the Age Discrimination in Employment Act. Building on Jackson’s highly dubious assertion that the Congress that enacted Title IX must have shared the Jackson Court’s reading of Sullivan, Alito observed, “We see no reason to think that Congress forgot about Sullivan during the two years that passed between the enactment of Title IX in 1972 and the enactment of [the relevant ADEA provision] in 1974.” As for the arguments in Justice Thomas’s dissent in Jackson: “[T]hat view did not prevail. And [the government] does not ask us to overrule Sullivan or Jackson. Nor does [it] question the reasoning of those decisions.” Justice Kennedy, who had joined Thomas’s dissent in Jackson, joined Alito’s opinion. And even Chief Justice Roberts, in dissent, acquiesced, “as a matter of stare decisis,” in the Jackson majority’s reading of Sullivan.

4. In CBOCS West, Inc. v. Humphries, the Court ruled, largely “upon principles of stare decisis,” that a post-Civil War statute, 42 U.S.C. 1981(a), “encompasses a complaint of retaliation against a person who has complained about a violation of another person’s contract-related ‘right.’” Justice Breyer’s majority opinion was on behalf of seven justices, including the Chief Justice, Justice Kennedy, and Justice Alito.

Justice Thomas’s dissent powerfully argues that retaliation claims are based on conduct, not status (a distinction recognized in a 2006 ruling), that Jackson was wrong, and that the majority misreads Sullivan.