This essay, which was prepared for a symposium issue in recognition of the twentieth anniversary of the Civil Rights Act of 1991, explores the Supreme Court’s response to the Congressional repudiation of its cases reflected in the 1991 Act. Relying on a positive political theory framework, I demonstrate that the Court appears to have responded in a strategically sophisticated manner designed to insulate their decisions from Congressional reversal. The 1991 Act reversed or modified eight Supreme Court decisions, and reflected concern regarding the conservative turn the Court had taken in discrimination cases. After the passage of the Act, plaintiffs have fared substantially better in the Supreme Court - prevailing on nearly seventy (70%) of the non-disability employment discrimination cases, with nearly two thirds of the victories rendered by unanimous decisions. Yet, in the most significant cases - the cases the conservative members of the Supreme Court likely have the strongest preference - defendants continue to prevail, often by a 5-4 margin.
Michael Selmi, The Supreme Court’s Surprising and Strategic Response to the Civil Rights Act of 1991, 46 Wake Forest L. Rev. 281 (2011).