No. 18-1171
IN THE

Supreme Court of the United States
___________

COMCAST CORPORATION,
v.

Petitioner,

NATIONAL ASSOCIATION OF AFRICAN AMERICAN–
OWNED MEDIA AND ENTERTAINMENT STUDIOS
NETWORKS, INC.,
Respondents.
___________

On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
___________

BRIEF OF MEMBERS OF CONGRESS AS
AMICI CURIAE IN SUPPORT OF
RESPONDENTS
___________

ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAYNA J. ZOLLE**
CLARE E. RIVA**
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW
Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amici Curiae
September 30, 2019

*Counsel of Record
**Not admitted in D.C.; supervised by principals of the firm

 TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF AMICI CURIAE ..........................

1

INTRODUCTION AND SUMMARY OF
ARGUMENT ......................................................

2

ARGUMENT .........................................................

5

I.

THE PLAIN TEXT OF SECTION
1981 GUARANTEES ALL PERSONS,
REGARDLESS OF RACE, AN
EQUAL RIGHT TO MAKE AND
ENFORCE CONTRACTS, AND IT
DOES NOT REQUIRE A SHOWING
OF BUT-FOR CAUSATION ...................

5

A. No “Default Rule” Favoring ButFor Causation Applies to
Section 1981 ...................................

6

B. Section 1981’s Plain Language
Prohibits Racial Discrimination
in the Making of Contracts,
Regardless of Whether Race Is a
But-For Cause of Any Adverse
Action ..............................................

10

THE STRUCTURE AND HISTORY
OF SECTION 1981 CONFIRM THAT
THE STATUTE DOES NOT
REQUIRE A SHOWING OF BUTFOR CAUSATION ...................................

15

CONCLUSION ....................................................

22

APPENDIX ..........................................................

1A

II.

(i)

 ii
TABLE OF AUTHORITIES
Cases

Page(s)

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) ..................................

21

Bridge v. Phoenix Bond & Indemnity Co.,
553 U.S. 639 (2008) ................................

7, 9

Brown v. Bd. of Educ.,
347 U.S. 483 (1954) ................................

11

Burrage v. United States,
571 U.S. 204 (2014) .......................... 3, 6, 7, 8, 9
CBOCS W., Inc. v. Humphries,
553 U.S. 442 (2008) ................................ passim
Chickasaw Nation v. United States,
534 U.S. 84 (2001) ..................................

18

City of Richmond v. J.A. Croson Co.,
488 U.S. 469 (1989) ................................

11

Conn. Nat’l Bank v. Germain,
503 U.S. 249 (1992) ................................

14

Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc.,
447 U.S. 102 (1980) ................................

5

Dean v. United States,
556 U.S. 568 (2009) ................................

15

Dodd v. United States,
545 U.S. 353 (2005) ................................

10

Domino’s Pizza, Inc. v. McDonald,
546 U.S. 470 (2006) ................................ 10, 16

 iii
TABLE OF AUTHORITIES – cont’d
Page(s)
Fed. Express Corp. v. Holowecki,
552 U.S. 389 (2008) ................................
6
Gen. Bldg. Contractors Ass’n, Inc. v.
Pennsylvania,
458 U.S. 375 (1982) ........................ 4, 14, 15, 16
Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167 (2009) ....................... 6, 7, 9, 17, 19
Gulf Oil Corp. v. Copp Paving Co., Inc.,
419 U.S. 186 (1974) ................................

17

Harris Trust & Sav. Bank v. Salomon
Smith Barney Inc.,
530 U.S. 238 (2000) ................................

5

Holmes v. Sec. Investor Prot. Corp.,
503 U.S. 258 (1992) ................................

9

Hughes Aircraft Co. v. Jacobson,
525 U.S. 432 (1999) ................................

5

Jones v. Alfred H. Mayer Co.,
392 U.S. 409 (1968) ................................ passim
King v. Burwell,
135 S. Ct. 2480 (2015) ............................

21

Loughrin v. United States,
573 U.S. 351 (2014) ................................

14

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ................................

3, 11

Pension Benefit Guar. Corp. v. LTV Corp.,
496 U.S. 633 (1990) ................................

18

 iv
TABLE OF AUTHORITIES – cont’d
Page(s)
Perrin v. United States,
444 U.S. 37 (1979) ..................................
12
Price Waterhouse v. Hopkins,
490 U.S. 228 (1989) ................................

17

Puerto Rico v. Franklin Cal. Tax-Free
Trust,
136 S. Ct. 1938 (2016) ............................

9

Rivers v. Roadway Express, Inc.,
511 U.S. 298 (1994) ................................

3, 11

Runyon v. McCrary,
427 U.S. 160 (1976) ............................ 10, 13, 14
Russello v. United States,
464 U.S. 16 (1983) ..................................

16

Safeco Ins. Co. of Am. v. Burr,
551 U.S. 47 (2007) ..................................

9

Screws v. United States,
325 U.S. 91 (1945) ..................................

15

United States v. Price,
361 U.S. 304 (1960) ................................

18

United States v. Wise,
370 U.S. 405 (1962) ................................

18

Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013) ................................ passim
Wis. Cent. Ltd. v. United States,
138 S. Ct. 2067 (2018) ............................

12

 v
TABLE OF AUTHORITIES – cont’d
Page(s)
Constitutional Provisions and Legislative Materials
29 U.S.C. § 623(a) ....................................

6

29 U.S.C. § 623(a)(1) ............................... 7, 8, 19
42 U.S.C. § 1981(a) ..................................

passim

42 U.S.C. § 1981(b) .................................. 2, 5, 12
42 U.S.C. § 1982 ......................................

13, 14

42 U.S.C. § 2000e-2(a)(1) ........................

8, 19

42 U.S.C. § 2000e-2(m) ............................

8, 18

42 U.S.C. § 2000e-3(a) .............................

7, 8

Act of May 31, 1870, 16 Stat. 140 ...........

15

Cong. Globe, 39th Cong., 1st Sess.
(1866) ....................................................

2, 16

Civil Rights Act of 1866, 14 Stat. 27 ......

15

Civil Rights Act of 1991, Pub. L. No. 102166, 105 Stat. 1071 ............................ 11, 12, 18
H.R. Rep. No. 102-40, pt. 2 (1991) ..........

22

Books, Articles, and Other Authorities
1 Webster’s Third New International Dictionary (1966) .........................................

7

Noah Webster, An American Dictionary of
the English Language (1864) ................. 12, 13

 vi
TABLE OF AUTHORITIES – cont’d
Page(s)
Webster’s Ninth New Collegiate Dictionary
(1991) ......................................................
13
Deborah A. Widiss, Undermining Congressional Overrides: The Hydra Problem in
Statutory Interpretation, 90 Tex. L. Rev.
859 (2012) ...............................................

19

 1
INTEREST OF AMICI CURIAE1
Amici are members of the U.S. Senate and House
of Representatives, many of whom are members of the
Congressional Black Caucus (CBC). For nearly 50
years, the CBC has been committed to using the full
constitutional power, statutory authority, and financial resources of the federal government to ensure that
African Americans and other marginalized communities in the United States have the opportunity to
achieve the American Dream. This commitment includes expanding access to capital, contracts, and
counseling for minority-owned businesses. As members of Congress, amici have a strong interest in ensuring that the laws Congress has passed are interpreted in a manner that is consistent with their text,
history, and Congress’s plan in passing them. The
statute at issue in this case—42 U.S.C. § 1981—was
passed immediately after the Civil War as part of a
broader effort to ensure that the newly freed slaves enjoyed the same rights as other citizens. Critical to that
effort was Section 1981’s guarantee that all persons
have an equal right to make and enforce contracts
without regard to race. Amici therefore have a strong
interest in ensuring that Section 1981 is properly understood to allow a person who is denied that right to
state a claim, regardless of whether she pleads or
proves that race was a but-for cause of that denial.

The parties have consented to the filing of this brief, and
their letters of consent have been filed with the Clerk. Under
Rule 37.6 of the Rules of this Court, amici state that no counsel
for a party authored this brief in whole or in part, and no counsel
or party made a monetary contribution intended to fund the
preparation or submission of this brief. No person other than
amici or their counsel made a monetary contribution to its preparation or submission.
1

 2
INTRODUCTION AND
SUMMARY OF ARGUMENT
Congress first enacted 42 U.S.C. § 1981 in the Civil
Rights Act of 1866 as part of an “immediately post–
Civil War legislative effort to guarantee the then
newly freed slaves the same legal rights that other citizens enjoy,” CBOCS W., Inc. v. Humphries, 553 U.S.
442, 448 (2008); see Cong. Globe, 39th Cong., 1st Sess.
476 (1866) (Senator Trumbull, the bill’s Senate sponsor, describing the rights protected as “fundamental
rights belonging to every man as a free man”), and “to
prohibit all racially motivated deprivations of the
rights enumerated in the statute,” Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 426 (1968). The statute provides, in relevant part, that “[a]ll persons within the
jurisdiction of the United States shall have the same
right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). It defines the term “make and enforce contracts” broadly to
“include[] the making, performance, modification, and
termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b).
Respondents National Association of African American–Owned Media and Entertainment Studios Networks, Inc. (ESN) allege that Petitioner Comcast Corporation’s refusal to enter into a contract with ESN to
carry its television channels was racially motivated in
violation of Section 1981. Pet. App. 2a, 34a. After a
district court dismissed Petitioner’s suit for failure to
state a claim, the court of appeals reversed, holding
that “[i]f discriminatory intent plays any role in a defendant’s decision not to contract with a plaintiff, even
if it is merely one factor and not the sole cause of the
decision, then that plaintiff has not enjoyed the same
right as a white citizen” and can state a viable claim

 3
under Section 1981. Id. at 21a. This Court should affirm the judgment below because Respondents could
state a cognizable claim against Petitioner by alleging
that Petitioner denied them the right to make and enforce contracts free from racial discrimination, regardless of whether race was a but-for cause of that denial.
First, the plain text of Section 1981 guarantees all
persons, regardless of race, an equal right to make and
enforce contracts, and it does not require a showing of
but-for causation. Petitioner is wrong to argue that
Section 1981 is subject to a “default rule” that requires
a showing of but-for causation. Pet’r Br. 23. While this
Court has recognized that statutes containing causal
phrases like “because of” or “results from” generally require such a showing absent an indication to the contrary, see, e.g., Burrage v. United States, 571 U.S. 204,
212 (2014); Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570
U.S. 338, 347 (2013), Section 1981 contains no such
causal language. Accordingly, no “default rule” requiring but-for causation applies.
Instead, Section 1981’s plain text guarantees all
persons the same right to make contracts—a right that
“embrace[s] all aspects of the contractual relationship,” Rivers v. Roadway Express, Inc., 511 U.S. 298,
303 (1994), including the right to engage in the “formation of a contract,” Patterson v. McLean Credit Union, 491 U.S. 164, 176 (1989)—without respect to race.
Any racial discrimination that infects this process necessarily deprives those involved of the “same right” to
make a contract as members of another race, even if
the outcome of the contract negotiations remains the
same. It follows that the plain language of Section
1981 encompasses every racially motivated refusal to
contract, regardless of whether other motives prompt
that refusal as well.

 4
Second, the structure and history of Section 1981
confirm that the statute, by design, prohibits any racial discrimination in the making and enforcement of
contracts, regardless of whether that discrimination is
a but-for cause of the parties’ failure to enter into an
agreement. Congress first enacted Section 1981 alongside another provision that contained express causal
language, see Gen. Bldg. Contractors Ass’n, Inc. v.
Pennsylvania, 458 U.S. 375, 384 (1982), and Congress
omitted such language from Section 1981. Indeed, as
originally drafted, the provision that became Section
1981 contained express causal language, but Congress
removed that language before enacting the law. See
id. at 388 n.15. This Court should not now impose a
requirement that Congress deliberately chose not to
include when it passed the statute.
Moreover, contrary to Petitioner’s assertions, see
Pet’r Br. 28-32, this Court should not infer anything
from Congress’s failure to amend Section 1981—over a
century after its passage—to more explicitly allow
plaintiffs to bring claims where race is one of multiple
motivations for an adverse action simply because it
amended part of Title VII of the Civil Rights Act in this
manner. Section 1981 is an entirely separate statute
that contains markedly different language, so Congress’s failure to amend Section 1981 when it amended
Title VII says nothing about the causation standard
required to state a claim under Section 1981.
In short, this Court should hold that a person who
is denied the right to contract to which she is entitled
under Section 1981 need not plead or prove that race
was a but-for cause of that denial. To hold otherwise
would fundamentally alter the statute that Congress
passed in the immediate aftermath of the Civil War “to
prohibit all racially motivated deprivations of the

 5
rights enumerated in the statute,” Jones, 392 U.S. at
426.
ARGUMENT
I.

THE PLAIN TEXT OF SECTION 1981 GUARANTEES ALL PERSONS, REGARDLESS OF
RACE, AN EQUAL RIGHT TO MAKE AND
ENFORCE CONTRACTS, AND IT DOES NOT
REQUIRE A SHOWING OF BUT-FOR CAUSATION.

This Court has long recognized that “the starting
point for interpreting a statute is the language of the
statute itself.” Consumer Prod. Safety Comm’n v. GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980). “And where
the statutory language provides a clear answer, [the
analysis] ends there as well.” Harris Trust & Sav.
Bank v. Salomon Smith Barney Inc., 530 U.S. 238, 254
(2000) (quoting Hughes Aircraft Co. v. Jacobson, 525
U.S. 432, 438 (1999)). The plain text of Section 1981
should resolve this case.
Section 1981 provides that “[a]ll persons within the
jurisdiction of the United States shall have the same
right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” 42 U.S.C. § 1981(a). The statute defines “make and enforce contracts” to “include[]
the making, performance, modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.” Id. § 1981(b). Based on this plain language, this Court should hold that Section 1981 prohibits a person or entity from using race as a factor in
the refusal to make a contract, regardless of whether
race is a but-for cause of that refusal. This is because
such a racially tinged refusal deprives putative contracting parties of the critically important right that
Congress guaranteed them when it passed Section

 6
1981: the same right to make contracts as is enjoyed
by members of another race. See CBOCS, 553 U.S. at
459 (Thomas, J., dissenting) (“[Section] 1981 is an
equal-rights provision.”).
A. No “Default Rule” Favoring But-For Causation
Applies to Section 1981.
As an initial matter, Petitioner is incorrect to assert that Section 1981 is subject to a “default rule” that
requires a showing of but-for causation. See Pet’r Br.
23. To be sure, this Court has recognized that statutes
containing causal phrases like “because of” or “results
from” generally require a showing of but-for causation
absent an indication to the contrary. See, e.g., Burrage, 571 U.S. at 212 (“Where there is no textual or
contextual indication to the contrary, courts regularly
read phrases like ‘results from’ to require but-for causality.”); Nassar, 570 U.S. at 347 (“[T]hese are the default rules [Congress] is presumed to have incorporated [in Title VII], absent an indication to the contrary in the statute itself.”). But this “default rule”
does not apply to Section 1981, which contains no such
causal language. See Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 174 (2009) (“When conducting statutory
interpretation, we ‘must be careful not to apply rules
applicable under one statute to a different statute
without careful and critical examination.’” (quoting
Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393
(2008))).
Indeed, in this respect, Section 1981 is unlike every
statute that this Court has held requires a showing of
but-for causation. In Gross, for example, this Court
held that the Age Discrimination in Employment Act
(ADEA), which makes it unlawful for an employer to
take adverse action against an individual “because of
such individual’s age,” 29 U.S.C. § 623(a) (emphasis
added), requires proof “that age was the ‘but-for’ cause

 7
of the challenged adverse employment action.” Gross,
557 U.S. at 180. The Court explained that its inquiry
“must focus on the text of the ADEA,” and it especially
emphasized the statute’s use of the term “because of.”
Id. at 175; see id. at 176 (quoting 29 U.S.C. § 623(a)(1)
and italicizing those words). It noted that “[t]he words
‘because of’ mean ‘by reason of: on account of,’” id.
(quoting 1 Webster’s Third New International Dictionary 194 (1966)), and that it had previously recognized
that the phrase “by reason of” requires a showing of
but-for causation, id. (citing Bridge v. Phoenix Bond &
Indemnity Co., 553 U.S. 639, 652-55 (2008)). The
Court therefore concluded that, “under the plain language of the ADEA, . . . a plaintiff must prove that age
was the ‘but-for’ cause of the employer’s adverse decision.” Id.; see id. at 183 (Stevens, J., dissenting) (“Today, . . . the Court interprets the words ‘because of’ in
the ADEA ‘as colloquial shorthand for “but-for” causation.’” (citation omitted)); Burrage, 571 U.S. at 212-13
(describing how the Court’s decision in Gross “[r]el[ied]
on dictionary definitions” and “the ordinary meaning
of the word ‘because’”); Nassar, 570 U.S. at 350 (explaining that the Court in Gross “[c]oncentrat[ed] first
and foremost on the meaning of the phrase ‘because of
. . . age’” (quoting Gross, 557 U.S. at 176) (internal quotation marks omitted)).
For similar reasons, this Court held in Nassar that
the antiretaliation provision of Title VII of the Civil
Rights Act, which, among other things, makes it “an
unlawful employment practice for an employer to discriminate against any of his employees . . . because
[the employee] has opposed any practice made an unlawful employment practice by this subchapter,” 42
U.S.C. § 2000e-3(a) (emphasis added), requires proof
of but-for causation. 570 U.S. at 352. The Court emphasized that this provision, “like the statute at issue

 8
in Gross, makes it unlawful for an employer to take
adverse employment action against an employee ‘because’ of certain criteria,” id. (citing 29 U.S.C.
§ 623(a)(1)), and it explained that, “[g]iven the lack of
any meaningful textual difference between the text in
this statute and the one in Gross, the proper conclusion here, as in Gross, is that Title VII retaliation
claims require proof that the desire to retaliate was
the but-for cause of the challenged employment action,” id. Thus, the antiretaliation provision’s use of
the causal term “because” triggered application of the
default rule requiring but-for causation absent an indication otherwise, and the Court concluded that nothing in Title VII indicated that this default rule should
not apply.2
The following year, this Court reiterated the relevant rule: “In sum, it is one of the traditional background principles ‘against which Congress legislate[s],’ that a phrase such as ‘results from’ imposes a
requirement of but-for causation.” Burrage, 571 U.S.

2 The Court distinguished between Title VII’s antiretaliation
provision, 42 U.S.C. § 2000e-3(a), and the provision prohibiting
employment discrimination “because of [an] individual’s race,
color, religion, sex, or national origin,” id. § 2000e-2(a)(1), which
this Court has recognized is an example of the rare law that contains an express causal phrase and yet does not require a plaintiff
to prove that the discrimination would not have occurred but for
that protected status. That provision falls within this exception
because, since the passage of the 1991 Civil Rights Act, Title VII
has expressly stated that a plaintiff who brings such a claim must
demonstrate only that “race, color, religion, sex, or national origin
was a motivating factor for any employment practice, even
though other factors also motivated the practice.” Id. § 2000e2(m); see Nassar, 570 U.S. at 348-49. In Nassar, the Court concluded that this “motivating factor” provision, by its terms, does
not also apply to retaliation claims. 570 U.S. at 352-57.

 9
at 214 (quoting Nassar, 570 U.S. at 347); id. at 213 (explaining that “insistence on but-for causality has not
been restricted to statutes using the term ‘because of,’”
but also extends to statutes containing causal phrases
such as “based on” (citing Safeco Ins. Co. of Am. v.
Burr, 551 U.S. 47, 63 (2007)) and “by reason of” (citing
Gross, 557 U.S. at 176; Bridge, 553 U.S. at 653-54; and
Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 26568 (1992))). The Court also noted that state courts
“usually interpret similarly worded criminal statutes
in the same manner.” Id.; see id. at 214 (collecting
state court decisions holding that statutes containing
the phrases “results in,” “because of,” and “obtained as
a result of” require but-for causation). Accordingly,
the Court concluded that “[w]here there is no textual
or contextual indication to the contrary, courts regularly read phrases like ‘results from’ to require but-for
causality.” Id. at 212; see Safeco Ins. Co., 551 U.S. at
63 (“In common talk, the phrase ‘based on’ indicates a
but-for causal relationship.”); see also U.S. Br. 25 (describing the phrase “on account of” as “characteristic
but-for language” (emphasis removed)).
Because Section 1981 contains no such causal language, this but-for cause “default rule” is inapposite.
See U.S. Br. 17 (conceding that “Section 1981 does not
use specific causal language, as did the statutes in
Gross and Nassar”).3 Unlike the ADEA and Title VII,
Petitioner emphasizes that this Court has sometimes used
causal language to describe Section 1981 and that it has held that
Section 1981 is violated when a plaintiff has proven that she was
discriminated against “because of” her race. See Pet’r Br. 34-38.
These assertions, however, do not help Petitioner for two reasons.
First, this Court’s descriptions of a statute are no substitute for
the statutory text. See Puerto Rico v. Franklin Cal. Tax-Free
Trust, 136 S. Ct. 1938, 1949 (2016) (“[O]ur constitutional struc3

 10
Section 1981 states that “[a]ll persons within the jurisdiction of the United States shall have the same right
. . . to make and enforce contracts . . . as is enjoyed by
white citizens.” 42 U.S.C. § 1981(a). Accordingly, no
causal “default rule” applies. In any event, as the next
Section explains, the statute’s plain language makes
clear that a plaintiff can bring a cognizable claim under Section 1981 without establishing but-for causation.
B. Section 1981’s Plain Language Prohibits Racial
Discrimination in the Making of Contracts, Regardless of Whether Race Is a But-For Cause of
Any Adverse Action.
As this Court has recognized, Section 1981’s plain
text “protects the equal right of ‘[a]ll persons within
the jurisdiction of the United States’ to ‘make and enforce contracts’ without respect to race.” Domino’s
Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006)
(quoting 42 U.S.C. § 1981(a)). The statute therefore
guarantees everyone the same right to engage in the
contract-formation process regardless of race, and it
makes no difference whether that process would have
produced a different outcome but for someone’s race.

ture does not permit this Court to ‘rewrite the statute that Congress has enacted.’” (quoting Dodd v. United States, 545 U.S. 353,
359 (2005))). This Court therefore has not (and could not have)
inserted causal language into Section 1981 by occasionally describing it in causal terms. And second, although the cases on
which Petitioner relies have concluded, for instance, that a showing of discrimination “solely because” of race is sufficient to state
a claim under Section 1981, see, e.g., Runyon v. McCrary, 427 U.S.
160, 170-71 (1976); Jones, 392 U.S. at 419, Petitioner concedes
that “these decisions did not directly present the question at issue
here—that is, whether but-for causation is a necessary condition
of a Section 1981 claim,” Pet’r Br. 36.

 11
To begin, the “right . . . to make . . . contracts,” 42
U.S.C. § 1981(a), extends beyond the ability to sign
documents and officially enter into agreements: it “embrace[s] all aspects of the contractual relationship,”
Rivers, 511 U.S. at 303, including the right to negotiate terms and otherwise participate in the “formation
of a contract,” Patterson, 491 U.S. at 176, superseded
on other grounds by statute, Civil Rights Act of 1991,
§ 101(2)(b), Pub. L. No. 102-166, 105 Stat. 1071, 107172; see id. at 176-77 (noting that Section 1981 prohibits
both “the [racially discriminatory] refusal to enter into
a contract with someone, as well as the offer to make
a contract only on discriminatory terms”). 4 Accordingly, Section 1981, on its face, guarantees all persons
the right to make a contract on an equal basis without
respect to race. Any racial discrimination that infects
this process necessarily deprives those involved of the
“same right” to make a contract as members of another
race, even if the outcome of the contract negotiations
remains the same. Cf. Brown v. Bd. of Educ., 347 U.S.
483, 495 (1954) (recognizing that “separate but equal”
is “inherently unequal”); City of Richmond v. J.A.
Croson Co., 488 U.S. 469, 493 (1989) (plurality opinion) (noting that “[c]lassifications based on race carry
a danger of stigmatic harm” and holding that race-conscious contracting is subject to strict scrutiny for equal
protection purposes). Thus, a person who is denied

4 That Congress superseded Patterson by amending Section
1981 to clarify that the statute also covers post-contract-formation activities only underscores the validity of the Court’s
statements in Patterson about the breadth of the right to initially
“make” a contract. See U.S. Br. 4, 20 n.1 (explaining that the
amendment to Section 1981 defining “make and enforce contracts” “merely clarified that the statute covers ‘post-contract-formation conduct’” (citation omitted)).

 12
that right has a colorable claim under the statute, regardless of whether she was ultimately able to enter
into a contract.
The ordinary, contemporaneous definition of the
word “make” reinforces this conclusion. See Wis. Cent.
Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018) (“[It
is] a ‘fundamental canon of statutory construction’
that words generally should be ‘interpreted as taking
their ordinary, contemporary, common meaning . . . at
the time Congress enacted the statute.” (omission in
original) (quoting Perrin v. United States, 444 U.S. 37,
42 (1979))); Pet’r Br. 26 (agreeing that Section 1981’s
terms “must be read as they would have been understood at the time of their enactment”). At the time
Congress enacted Section 1981, the “ordinary, . . . common meaning” of the term “make” was “[t]o cause to
exist; to bring into being; to produce; to frame; to fashion; to create; . . . [t]o form of materials; to cause to exist in a certain form; to construct; to fabricate.” Noah
Webster, An American Dictionary of the English Language 802 (1864). The right to make contracts governed by Section 1981 therefore encompasses not only
the right to enter into contracts, id. (including the
word “execute” in one sub-definition of “make”), but
also the right to form or construct those agreements,
and Section 1981 thus prohibits any racial discrimination that factors into that process.
The statutory definition of the phrase “to make and
enforce contracts,” which Congress added in the Civil
Rights Act of 1991, strongly reinforces this point. Section 1981 now clarifies that “the term ‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” Civil Rights Act
of 1991, § 101, 105 Stat. 1072, codified at 42 U.S.C.

 13
§ 1981(b). Webster’s defined “making” in 1991 as “the
act or process of forming, causing, doing, or coming
into being.” Webster’s Ninth New Collegiate Dictionary
719 (1991). Thus, Section 1981 prohibits racial discrimination in the contract-formation process, regardless of whether that discrimination ultimately drives
the parties not to reach an agreement.
The other language in Section 1981 guaranteeing
“[a]ll persons . . . the same right . . . as is enjoyed by
white citizens” likewise ensures equality in all aspects
of the contract-making process, not merely in the outcome. 42 U.S.C. § 1981(a) (emphasis added). The ordinary public meaning of the word “same” in 1866 was
“[n]ot different or other; identical.” Webster, supra, at
1167. A person who faces racial discrimination in the
contract-making process is therefore deprived of “the
same right . . . to make and enforce contracts,” 42
U.S.C. § 1981(a), as someone of another race who
would enjoy a different contract-making experience.
Likewise, a person who is denied an opportunity to
make a contract for both racial and nonracial reasons
is denied “the same right . . . to make and enforce contracts,” id., as someone of another race because she
does not receive the same opportunity to make contracts on a purely nonracial basis. Cf. Runyon v.
McCrary, 427 U.S. 160, 171 (1976) (recognizing that
Section 1981 guarantees African Americans “the same
opportunity to enter into contracts” as white persons).
Indeed, this Court has recognized that Section
1981’s language guaranteeing “[a]ll persons . . . the
same right” to do certain things, which originally appeared in the Civil Rights Act of 1866, is “comprehensive” and “forbid[s] all racial discrimination affecting
the basic civil rights enumerated in the Act.” Jones,
392 U.S. at 435. In Jones, 392 U.S. 409, this Court
examined Congress’s use of identical language in 42

 14
U.S.C. § 1982—Section 1981’s “sister statute,”
CBOCS, 553 U.S. at 452, which was enacted alongside
it in the 1866 Act, Gen. Bldg. Contractors, 458 U.S. at
383-84, and which provides that “[a]ll citizens of the
United States shall have the same right . . . as is enjoyed by white citizens . . . to inherit, purchase, lease,
sell, hold, and convey real and personal property,” 42
U.S.C. § 1982. The Court concluded that “Congress
meant exactly what it said” in Section 1982 and that
the statute “must encompass every racially motivated
refusal to sell or rent.” Jones, 392 U.S. at 421-22; cf.
Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54
(1992) (“[C]ourts must presume that a legislature says
in a statute what it means and means in a statute
what it says there.”); Loughrin v. United States, 573
U.S. 351, 360 (2014) (same). Because the two statutes
share largely the same language, history, and purpose,
this Court’s “precedents have long construed §§ 1981
and 1982 similarly,” CBOCS, 553 U.S. at 447; see Gen.
Bldg. Contractors, 458 U.S. at 383-84 (summarizing
the joint history of Section 1981 “and its companion,
42 U.S.C. § 1982”), and this Court has repeatedly confirmed that the Court’s holding in Jones applies to Section 1981, Runyon, 427 U.S. at 171.
It therefore follows that the plain language of Section 1981 “encompass[es] every racially motivated refusal” to contract, regardless of whether other motives
prompt that refusal as well. Jones, 392 U.S. at 421;
see id. at 436 (“[I]t is clear that the Act was designed
to do just what its terms suggest: to prohibit all racial
discrimination, whether or not under color of law, with
respect to the rights enumerated therein.”).

 15
II. THE STRUCTURE AND HISTORY OF SECTION 1981 CONFIRM THAT THE STATUTE
DOES NOT REQUIRE A SHOWING OF BUTFOR CAUSATION.
Section 1981’s structure and history confirm that
the statute, by design, prohibits racial discrimination
in the making and enforcement of contracts, regardless of whether that discrimination is a but-for cause
of the parties’ failure to enter into an agreement.
First, when Congress initially enacted Section 1981
in the aftermath of the Civil War, it passed it alongside
another provision that contained express causal language. But Congress deliberately omitted such language from Section 1981. The operative text of Section
1981 guaranteeing “[a]ll persons . . . the same right . . .
to make and enforce contracts,” 42 U.S.C. § 1981(a),
originally appeared in Section 1 of the Civil Rights Act
of 1866. Gen. Bldg. Contractors, 458 U.S. at 384. Section 2 of that Act, by contrast, provided that “any person who . . . shall subject, or cause to be subjected, any
inhabitant of any State or Territory to the deprivation
of any right secured or protected by . . . this act . . . by
reason of his color or race . . . shall be deemed guilty of
a misdemeanor.” Civil Rights Act of 1866, § 2, 14 Stat.
27, 27 (emphasis added). And in 1870, while Congress
kept the operative text of Section 1 the same, see
Screws v. United States, 325 U.S. 91, 99 n.6 (1945), it
amended Section 2 to expand the criminal penalties
available to those who deprive civil rights “on account
of such person being an alien, or by reason of his color
or race,” Act of May 31, 1870, § 17, 16 Stat. 140, 144
(emphases added).
Congress’s inclusion of such express causal language “unambiguously requir[ing] but-for causation,”
Pet’r Br. 37, in Section 2 but not in Section 1 reflects a
deliberate congressional choice. See Dean v. United

 16
States, 556 U.S. 568, 573 (2009) (“[W]here Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
(alteration in original) (emphasis added) (quoting Russello v. United States, 464 U.S. 16, 23 (1983))); Nassar,
570 U.S. at 353 (“Just as Congress’ choice of words is
presumed to be deliberate, so too are its structural
choices.”).
Indeed, as originally drafted, the provision that became Section 1981 contained an introductory statement that “there shall be no discrimination in civil
rights or immunities among the inhabitants of any
State or Territory of the United States on account of
race, color, or previous condition of slavery.” Cong.
Globe, 39th Cong., 1st Sess. 474 (1866) (emphasis
added) (statement of Sen. Trumbull); see Gen. Bldg.
Contractors, 458 U.S. at 388 n.15. Congress removed
that sentence before passing the law, however, after
disputes arose regarding “the breadth of the phrase
‘civil rights and immunities,’” which “could have been
interpreted to encompass the right of suffrage and
other political rights.” Gen. Bldg. Contractors, 458
U.S. at 388 n.15. Accordingly, the statute that Congress ultimately enacted protects specific, enumerated
rights, including the right to make and enforce contracts free from racial discrimination. See Domino’s
Pizza, 546 U.S. at 479 (explaining that Section 1981
was not “meant to provide an omnibus remedy for all
racial injustice,” but rather was “limited to situations
involving contracts”).
Although the United States as amicus argues that
the deletion of the phrase “on account of” was merely

 17
“a casualty of the removal of the entire passage containing the ambiguous phrase ‘civil right or immunities,’” U.S. Br. 25, this Court must assume that Congress’s “structural choices” are “deliberate,” Nassar,
570 U.S. at 353. See Gross, 557 U.S. at 177 n.3 (“We
must give effect to Congress’ choice.”). Indeed, this
Court has recognized that when Congress considers a
provision while crafting a bill but deletes it before passage, this removal “strongly militates against a judgment that Congress intended a result that it expressly
declined to enact.” Gulf Oil Corp. v. Copp Paving Co.,
Inc., 419 U.S. 186, 200 (1974); see Nassar, 570 U.S. at
353 (“[I]t would be improper to conclude that what
Congress omitted from the statute is nevertheless
within its scope.”). And even if Congress did not specifically intend the removal of the words “on account
of” to signal anything about the appropriate causation
standard, it remains the case that Congress failed to
include that language in the final version of Section
1981, even though it did include such terminology in a
separate provision. Thus, Section 1981, as enacted,
contains no causal language and plainly allows plaintiffs to bring claims where race is one of multiple motivations for an adverse action.
Second, this Court should not infer anything from
Congress’s failure to amend Section 1981—over a century after its enactment—to more explicitly allow
plaintiffs to bring mixed-motive claims simply because
Congress separately amended part of Title VII in this
manner. After a plurality of this Court in Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989), adopted a
burden-shifting framework that required but-for causation for liability under Title VII, Congress enacted
the Civil Rights Act of 1991, which amended Title VII

 18
to clarify that “an unlawful employment practice is established when the complaining party demonstrates
that race . . . was a motivating factor for any employment practice, even though other factors also motivated the practice.” Civil Rights Act of 1991, § 107(a),
105 Stat. 1075, codified at 42 U.S.C. § 2000e-2(m). But
Section 1981 is an entirely separate statute from Title
VII that has always contained markedly different language, so Congress’s failure to amend Section 1981
when it amended Title VII says nothing about the causation standard required to state a claim under Section 1981.
This Court has repeatedly emphasized that “[c]ongressional inaction lacks ‘persuasive significance’ because ‘several equally tenable inferences’ may be
drawn from such inaction, ‘including the inference
that the existing legislation already incorporated the
offered change.’” Pension Benefit Guar. Corp. v. LTV
Corp., 496 U.S. 633, 650 (1990) (quoting United States
v. Wise, 370 U.S. 405, 411 (1962)). Moreover, in a statutory interpretation dispute, the Court’s role is to “determine the Legislature’s intent as embodied in particular statutory language.” Chickasaw Nation v. United
States, 534 U.S. 84, 94 (2001). Accordingly, “subsequent legislative history is a ‘hazardous basis for inferring the intent of an earlier’ Congress.” Pension
Benefit Guar. Corp., 496 U.S. at 650 (quoting United
States v. Price, 361 U.S. 304, 313 (1960)). This Court
therefore should not draw any inferences about the
causal requirements of Section 1981—which was first
enacted in 1866—based on Congress’s silence in this
regard in 1991.
To be sure, this Court stated in Gross that it could
not “ignore Congress’ decision to amend Title VII’s relevant provisions” to explicitly prohibit mixed-motive

 19
status-based discrimination “but not make similar
changes to the ADEA.” Gross, 557 U.S. at 174. But
the ADEA and Title VII, unlike Section 1981, contain
identical causal language. See 42 U.S.C. § 2000e2(a)(1) (prohibiting discrimination in employment “because of” certain traits); 29 U.S.C. § 623(a)(1) (prohibiting discrimination in employment “because of” an individual’s age). Because the Court in Gross “[c]oncentrat[ed] first and foremost on the meaning of the
phrase ‘because of . . . age’” in the ADEA, Nassar, 570
U.S. at 350 (quoting Gross, 557 U.S. at 176) (internal
quotation marks omitted), the Court found it noteworthy that Congress chose to amend Title VII to clarify
that that statute prohibits mixed-motive status-based
discrimination, despite its use of the words “because
of,” without also modifying the exact same language in
the ADEA when it otherwise amended that statute.
See Gross, 557 U.S. at 174.5
Section 1981, by contrast, does not contain similar—or, indeed, any—causal language that might have
prompted Congress to clarify the applicable causation
requirement after the Court’s decision in Price Waterhouse. There is therefore no reason for this Court to
find the Title VII amendment relevant here. See Deborah A. Widiss, Undermining Congressional Overrides: The Hydra Problem in Statutory Interpretation,
90 Tex. L. Rev. 859, 860 (2012) (criticizing the notion
that the Court’s “single judicial interpretation” in
5 Although Congress reenacted and otherwise amended Section 1981 in the 1991 Act, it did so only to define “make and enforce contracts” in response to Patterson, which had unduly narrowed the scope of Section 1981 itself. See CBOCS, 553 U.S. at
451; U.S. Br. 20 n.1 (explaining that “that amendment merely
clarified that the statute covers ‘post-contract-formation conduct’”).

 20
Price Waterhouse could “spread readily across multiple
statutes”).
Indeed, this Court has rejected the analogous argument that Congress intended for Section 1981 “not
to cover retaliation” simply because, when it reenacted
Section 1981 in 1991, “Congress did not include an explicit antiretaliation provision or the word ‘retaliation’
in the new statutory language—although Congress
has included explicit antiretaliation language in other
civil rights statutes.” CBOCS, 553 U.S. at 453-54. The
Court concluded that Section 1981 already gave rise to
claims for retaliation, and thus, “there was no need for
Congress to include explicit language about retaliation.” Id. at 454. Along the same lines, because Section 1981’s text already allowed plaintiffs to challenge
racial discrimination in the making of contracts even
when multiple motives are at play, there was no need
for Congress to more explicitly state that in the 1991
Act.
Finally, Petitioner argues that allowing mixedmotive claims under Section 1981 would “completely
circumvent[]” the “finely balanced remedial scheme for
motivating-factor claims” under Title VII that, in its
view, Congress created by “carefully limit[ing] the
remedies potentially available to a plaintiff relying on
a motivating-factor standard [and] excluding the types
of compensatory and punitive damages available under Section 1981.” Pet’r Br. 17; see id. at 32. Congress
passed Title VII, however, against the backdrop of Section 1981’s existing protections, and nothing in Title
VII’s text indicates that Congress intended to circumscribe the important protections against racial discrimination that Congress provided for in Section
1981. Indeed, this Court rejected a similar argument

 21
in CBOCS. See 553 U.S. at 455 (rejecting the argument “that permitting a § 1981 retaliation action
would allow a retaliation plaintiff to circumvent Title
VII’s ‘specific administrative and procedural mechanisms,’ thereby undermining their effectiveness” (citation omitted)). In that case, the Court explained that
“‘Title VII was designed to supplement, rather than
supplant, existing laws and institutions relating to
employment discrimination,’” so any “‘overlap’” between the statutes “reflects congressional design.” Id.
(quoting Alexander v. Gardner-Denver Co., 415 U.S.
36, 48-49 (1974)). The Court should reject Petitioner’s
argument here for the same reason.
Petitioner’s amici also contend that allowing such
claims under Section 1981 would “impose litigation
burdens and settlement demands on businesses, local
governments and school districts, and other contracting entities” and “invite tenuous allegations of discrimination.” Chamber Amicus Br. 3. But if this Court
recognizes (as it should) that Section 1981 allows
mixed-motive claims, any plaintiff seeking to bring
such a claim will still need to show that she was denied
an equal right to make and enforce contracts, as the
statute requires. And in any event, speculative concerns about “tenuous allegations of discrimination”
provide no basis for rewriting the statute that Congress passed. See King v. Burwell, 135 S. Ct. 2480,
2496 (2015) (“[I]n every case we must respect the role
of the Legislature, and take care not to undo what it
has done.”).
***
When Congress passed Section 1981 in the aftermath of the Civil War, it was part of a larger effort “to
guarantee the then newly freed slaves the same legal
rights that other citizens enjoy.” CBOCS, 553 U.S. at

 22
448. As the statute’s text, structure, and history make
clear, Section 1981 was passed “to prohibit all racially
motivated deprivations of the rights enumerated in
the statute,” Jones, 392 U.S. at 426, not just deprivations of the right to contract for which race was a butfor cause. As “the only federal law banning race discrimination in all contracts,” Section 1981 “has been a
critically important tool used to strike down racially
discriminatory practices in a broad variety of contexts.” H.R. Rep. No. 102-40, pt. 2, at 35 (1991). This
Court should not rewrite Section 1981 and disturb the
vital protections that Congress passed that statute to
provide.
CONCLUSION
For the foregoing reasons, the judgment of the
Ninth Circuit should be affirmed.
Respectfully submitted,
ELIZABETH B. WYDRA
BRIANNE J. GOROD*
DAYNA J. ZOLLE**
CLARE E. RIVA**
CONSTITUTIONAL
ACCOUNTABILITY CENTER
1200 18th Street NW
Suite 501
Washington, D.C. 20036
(202) 296-6889
brianne@theusconstitution.org
Counsel for Amici Curiae
September 30, 2019

*Counsel of Record
** Not admitted in
D.C.; supervised by
principals of the firm

 1A
APPENDIX:
LIST OF AMICI
U.S. Senate
Harris, Kamala D.
Senator of California
Blumenthal, Richard
Senator of Connecticut
Booker, Cory A.
Senator of New Jersey
Wyden, Ron
Senator of Oregon
U.S. House of Representatives
Bass, Karen
Representative of California
Beatty, Joyce
Representative of Ohio
Clarke, Yvette D.
Representative of New York
Lee, Barbara
Representative of California
Payne, Jr., Donald
Representative of New Jersey
Pressley, Ayanna
Representative of Massachusetts
Scott, Robert C. “Bobby”
Representative of Virginia

 2A
LIST OF AMI CI cont?d

Watson Coleman, Bonnie
Representative of New Jersey