Publication Title

Notre Dame Law Review

Document Type



If the Supreme Court is willing to learn from past mistakes, the Court would find it particularly instructive to re-examine the now quite numerous civil rights decisions which have failed to survive congressional scrutiny. The United States Reports are today littered with the corpses of short-lived opinions purporting to interpret federal anti-discrimination statutes; most were dead on arrival in the bound volumes. October Term 1988 was a veritable Pickett's Charge of conservative misinterpretation. Patterson v. McLean Credit Union briefly displaced and destroyed much of section 1981; Public Employees Retirement System v. Betts temporarily overran parts of the Age Discrimination in Employment Act; Dellmuth v. Muthfor a time made substantial inroads into the Education of the Handicapped Act, while four other opinions attacked the viability of Title VII. All for naught. By the end of the next Congress, every one of these decisions had been felled by legislative action. The Civil Rights Act of 1991, wiping out in one blow eight different Supreme Court decisions, was an historically unique repudiation of judicial interpretation of the nation's statutes; not since the post-Civil War amendments obliterated Barron v. City Council of Baltimore and Dred Scott v. Sandford had Congress attacked the work of the Court with such ferocity.

The legal carnage wrought by the 1991 Civil Rights Act was unprecedented, but not unforeseeable. Prior to the late 1970's, it was uncommon for Congress to denounce and overturn a Supreme Court decision on the ground that the Court had misinterpreted the law. But from 1978 to 1990 Congress had repeatedly been compelled to take that once extraordinary action, adopting a total of eight different statutes overturning Supreme Court decisions which Congress believed had misread the statutes involved. Even before the 1991 Civil Rights Act, Congress had made unmistakably clear that there were fatal flaws in the way in which Chief Justice Rehnquist and his conservative colleagues were interpreting these laws.

This Article seeks to ascertain what lessons can and should be drawn from the action of Congress in adopting these nine corrective statutes. It suggests as its premise that the sixteen decisions overturned by Congress, although now just historic curiosities in the substantive law, are of unique importance for interpretive methodology because they embody the approach to statutory construction which Congress has so emphatically rejected.

The analysis which follows is thus in the nature of an autopsy of these disinterred decisions, seeking to determine what fatal defect was their undoing. It seeks, as well, to determine what rules of construction, if applied in these sixteen cases, would have yielded the interpretations which Congress has now indicated would have been the correct ones.



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.