479 U. S. 6
November 4, 1986
Section 1988 of the federal code allows a party relief from paying attorney’s fees when that party prevails in a civil rights suit. In Crest the Supreme Court ruled 6-3 that a lawsuit could not be filed solely to get the relief provided in section 1988 – there must be a preexisting lawsuit to obtain civil rights.
North Carolina was building a highway through Durham, and planned to have it plow through Crest Street, a black community. Residents of Crest Street thought this construction plan would violate the 1964 Civil Rights Act, and for five years, the NC Department of Transportation and the Crest Street community had intense legal negotiations. Finally, a satisfactory compromise was reached, but enormous legal fees had been racked up in the process. The Crest Street community started a lawsuit to take advantage of section 1988. Up until then, everything had been completely out of court.
O’Connor wrote the majority opinion, which held that section 1988 can only be invoked in an actual judicial case to enforce civil rights, and that a party cannot bring an independent cause of action to take advantage of the section. In reaching this conclusion, she relied heavily on the literal text of the statute, and on various statements found in the legislative record leading up to its passage. Brennan dissented, and he was joined by Marshall and Blackmun. He argued that the text of 1988 was broad enough to include non-judicial proceedings to enforce civil rights provisions. He also argued that allowing civil rights complainants to recover fees was the primary purpose of the legislation, regardless of literal text. Finally, he argued that O’Connor’s decision both flouted precedent, and would have negative real world consequences.
This case is a good example of the perennial liberal vs. conservative split in methodology. In his points about precedent, and real world consequences, Brennan was probably correct. But none of that mattered to the majority. O’Connor said that when text clashes with precedent, precedent must give way, and that the Court has no business making decisions based on predicted repercussions. It’s weird to see O’Connor being a good conservative textualist rather than an unmoored squish. A lot of her squishiness didn’t really emerge until the 1990s. As for Brennan’s opinion, he does make a surprisingly strong case, but I found O’Connor’s a hair more persuasive.