It is hard to be too surprised by CBOCS West. Although § 1981 does not mention retaliation, in light of the Supreme Court finding retaliation under Title IX in the same circumstances three years ago, see Whistleblowing in the Supreme Court,A Good Day, it would have been more surprising if the decision had gone the other way.
Pile on top of that the unanimity in agreeing that § 1981 prohibited retaliation by all the appeals courts which had decided the question and the impact is negligible, except in the sense of one that employers thought might help, got away. Perhaps more interesting is that the two justices who were not around for the Title IX decision, C.J. Roberts and J. Alito, were aligned with the 7 person majority and J. Kennedy switched his view, leaving only J. Thomas to dissent, joined by J. Scalia.
The basis for the decision emphasized by Justice Breyer -- stare decisis. An argument that J. Thomas was less than enamored with:
If as many think, there is a strong possibility that the next Congress will do away with the statutory caps of Title VII, today's decision in CBOCS West would be of even less importance, just a timing blip. What may be of longer term significance is the 7-2 majority, which was the same in both cases and the Court's view on the importance of stare decisis.Unable to justify its holding as a matter of statutory interpretation, the Court today retreats behind the figleaf of ersatz stare decisis. The Court’s invocation of stare decisis appears to rest on three considerations: (1) Sullivan’s purported recognition of a cause of action for retaliation under §1982; (2) Jackson’s (re)interpretation of Sullivan; and (3) the Courts of Appeals’ view that §1981 provides a cause of action for retaliation. None of these considerations, separately or together, justifies implying a cause of action that Congress did not include in the statute. And none can conceal the irony in the Court’s novel use of stare decisis to decide a question of first impression.
The first is significant to employers in contemplating how employment decisions may fare at the Supreme Court level in light of the 7-2 alignment. The second -- the view of stare decisis, given its potential impact on Roe v. Wade may well be the most significant thing to come from this decision.
Update: Mea culpa. The breakdown on the decision in Potter was not 7-2, but 6-3 with C.J. Roberts actually writing the dissent. Although since it was about federal employers, I just skimmed the decision, I should have been much more careful in what I wrote. Probably many of my fellow commentators caught it, but the first that I read that jumped out at me was Brian Peterson's post at the West Virginia Legal Weblog. Although it's not quite as good a story maybe as the 7-2 alignment in both cases would have been, perhaps it is as significant that J. Alito was actually the author of Potter majority opinion. And even better, it's accurate.