What Does ‘Reasonableness’ Require of Fourth Amendment Searches?

Georgia v. Randolph

This is a very interesting, and somewhat contorted case. I will use headings to describe the opinion the following paragraphs address. Notice, with the Court missing a member there are an even number of Justices, and it looks like they split evenly in this case. This case is also interesting because of the debates between the majority and the Chief Justice over policy, and between Stevens and Scalia over the nature of original intent jurisprudence. The case itself presents the question of whether an officer may conduct a warrantless search with the consent of one cotenant and over the objection of another, present, cotenant, and then use evidence found in that search against the objecting cotenant. These warrantless searches are legal under the Fourth Amendment so long as they are “reasonable.”

Majority: Justices Souter, Kennedy, Ginsburg

First of all, the Court argues, a third party’s common authority over property is “not synonymous with a technical property interest” since any one of those sharing authority over property could permit a search without the others’ knowledge. Rather, “the common authority that counts under the Fourth Amendment [may] be broader than the rights accorded by property law.” Turning to the question of what makes a search “reasonable” under the Fourth Amendment, the Court looks to “widely shared social expectations” which inform, but do not control, property law, and which have been the “constant element” in Fourth Amendment jurisprudence.

The Court then shows that past precedent is well explained in these terms. An officer can reasonably expect that a woman who most likely lives on a given premises is empowered to invite others (in this case the officer) inside, and the officer is not expected to ensure that she does not have an “atypical arrangement” with her roommates (Matlock). A cotenant does not suppose that his rental is premised on the ability of his landlord to invite others into is home (Chapman), nor does a hotel guest expect any similar arrangement where the manager may invite anyone other hotel employees into the guest’s hotel room (Stoner; Jeffers). A young child might have the authority to invite police officers to cross the threshold, but not to search the entire home. “Over-night houseguests have a legitimate expectation of privacy in their temporary quarters because ‘it is unlikely that [the host] will admit someone who wants to see or meet with the guest [over her objection’” (Olson).

Therefore, without a good reason, a guest/officer would not believe the invitation of one cotenant to be sufficient while another told him to ‘stay out.’ A concern for the first cotenant’s safety would justify such a decision, however on different grounds. Since there is no superiority in ownership (anymore) on which an officer can rely, one inviting and one objecting cotenant give the officer “no better claim to reasonableness in entering than the officer would have in the absence of any consent at all.” Meanwhile, the Court recognizes the cotenant’s interest in bringing criminal activity to light, his interest in siding with the police to “deflect suspicion raised by sharing quarters with a criminal,” and acknowledges that he may, on his own initiative, deliver evidence to the police and tell them what he knows, so that they can get a warrant (though sometimes this information would create a sufficient exingency to justify immediate action).

Responding to the dissent, the majority points out that if the officer had reason to believe on party was in danger she could certainly enter on that grounds, and being within the premises, conduct a plain view search, without committing a trespass. The Court also states that while the cotenant in Matlock was giving permission in “his own right,” this was not an enduring property right, but a socially recognized authority. The majority also states that for both social and practical reasons officers have no duty to affirmatively seek out, confirm, or presume the consent or lack of consent of an absent cotenant. The majority holds that “in the circumstances here at issue, a physically present co-occupant’s stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him.”

Concurrence: Justice Stevens

Justice Stevens argues that the majority opinion would be the proper interpretation of the Constitution even assuming a strict-originalist interpretation, an argument obviously directed at Scalia. He observes that “at least since 1604 it has been settled that in the absence f exigent circumstances, a government agent has no right enter a ‘house’ or ‘castle’ unless authorized to do so by a warrant.” Every occupant has a right to refuse, and where they voluntarily give consent (with advice regarding their rights) they give up a valuable constitutional right. Stevens argues that since originally only the husband’s consent mattered “if ‘original understanding’ were to govern the outcome of this case, the search was clearly invalid because the husband did not consent. History, however, is not dispositive because it is now clear, as a matter of constitutional law, that the male and the female are equal partners.”

Concurrence: Justice Breyer

Justice Bryer essentially says that if he had to choose between a bright-line rule which always found one cotenant’s consent sufficient, or never did, he would pick the former. However the Fourth Amendment does not require a bright line rule, but rather rests on ‘reasonableness.’ He stresses the “totality of the circumstances” because “were the circumstances to change significantly so should the result.”

Dissent: The Chief Justice

The dissent argues that just as the consenting cotenant does not have a right to prevail, neither does the objecting cotenant. The dissent particularly objects the majority’s reliance on social situations, arguing that “a wide variety of differing social situations can readily be imagined, giving rise to different social expectations.” “The Fourth Amendment protects privacy.” The Chief Justice argues that the case should be settled, as the precedents were, in terms of a reasonable expectation of privacy; privacy which is given up when a person shares private matters with someone else. “Just as Mrs. Randolph could walk upstairs, come down, and turn her husband’s cocaine straw over to the police, she can consent to police entry and search of what is, after all, her home too.” “It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to authorities … This court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to the Government authorities even if the information is revealed on the assumption that it will be used for a limited purpose and the confidence placed in a third party will not be betrayed” (Jackobson). The marriage exception remains the prerogative of the divulging party.

The dissent also points out that the officers could have reasonably concluded that a husband asleep on the couch would have objected to the officers’ entry for the purpose of his arrest over his wife’s objection, and that it is illogical to hold as the majority does without requiring police to make deductions about essentially present cotenants, or without requiring the police to consult with a cotenant nearby in police custody. The rule is so random in application, the dissent argues, that it bears no relation to the actual privacy interest at stake. The dissent takes issue with the fact that an officer can justify a search because of a fear for an occupant’s safety, justified on the ‘very consent that the majority finds so inadequate,’ and argues that exigent circumstances are “a strange way to justify a rule.” Finally, the dissent attacks the fact that the majority’s rule regarding the legality of the evidence is framed only as to the objecting party, and that, considering the contingent concurring opinion of Justice Breyer, this ruling is not much direction for lower courts.

Dissent: Justice Scalia

Justice Scalia defends originalism against Justice Stevens by arguing “if the matter did depend solely on property rights, a latter-day alteration of property rights would also produce a latter-day alteration of the Fourth Amendment outcome-without altering the Fourth Amendment itself. Justice Stevens’ attempted critique of originalism confuses the original import of the Fourth Amendment with the background sources of law to which the Amendment, on its original meaning, referred.” He argues that the Court has “consistently held that the existence of a property interest is determined by reference to existing rules or understandings that stem from an independent source such as state law.” This is an interesting contortion for originalism. He also argues that Stevens could have reached the opposite conclusion, that because a man cannot now overrule the woman she may consent regardless of his objection.

Dissent: Justice Thomas

Justice Thomas argues that because Mrs. Randolph, as a private citizen, admitted the officer into the home and led him to the evidence, no Fourth Amendment Search existed. “No Fourth Amendment search occurs where, as here, the spouse of an accused voluntarily leads the police to potential evidence of wrongdoing by the accused.” (Coolidge)

SKIP: What Does 'Purchase or Sale' Mean?

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit

I have sat down three times to read this case, and the fact of the matter is, there is nothing that grabs my attention to the point where I feel compelled to keep reading. It is a case about a class action suit against Merrill Lynch. There is a small chance that I will revisit this case.

The Required Particularity of Anticipatory Search Warrants

United States v. Grubbs

Grubs bought a video tape online, which he knew contained child pornography. The Postal Inspection Service applied for an “anticipatory search warrant.” Because the probable cause to believe that the video tape would be in Grubs’ house, which the warrant was based on, was necessarily conditioned upon a “controlled delivery” of the tape, this circumstance was listed as a “triggering condition.” About 30 min into the search Grubs was presented with the warrant, though what Grubs received did not include the affidavit explaining when the warrant would be executed (and therefore without the description of the triggering condition. This case addresses Grubs’ motion to suppress because the warrant did not specify the triggering condition and the constitutionality of anticipatory search warrants in general.

As to the constitutionality of anticipatory search warrants in general, the Court observes that the “probable-cause requirement looks to whether evidence will be found when the search is conducted.” Therefore, all search warrants are, in a sense, “anticipatory.” The only difference with anticipatory search warrants is that the probable-cause requirement is fulfilled conditionally. At the same time, the probable cause requirement of the Fourth Amendment also requires that the judge have probable cause to believe that the triggering condition will occur (or else a similar warrant could be issued with the proper triggering condition for every house in the country).

The Ninth Circuit held that the Fourth Amendment’s particularity requirement required that the search warrant specify the triggering condition. The Court, however, argues that the Fourth Amendment requires particularity only as to “the place to be searched” and “the persons or things to be seized.” The Court holds that the missing requirement as to particularity regarding the manner in which the things will be seized is decisive here. The Court also rejects the policy arguments that Grubs puts forth, and observes that “the Constitution protects property owners not by giving them license to engage the police in a debate over the basis for the warrant, but by interposing, ex ante, the ‘deliberate, impartial judgment of a judicial officer.’” The Court therefore decides that the warrant presented to the person whose property is searched and seized need not particularize the manner in which the search will be conducted or the justification of the search itself (so long as the judicial decision addressed the matter).

The concurrence clarifies that a warrant authorizes a limited action, and in cases such as this, conditions upon which the police may act. The police are then entitled to do so. In this case, despite the fact that the warrant they held was incomplete the police adhered to the limitations set forth. If the police had not, regardless of what the warrant in their hands said, the search would have been illegal. The concurrence also points out that “the right of an owner to demand to see a copy of the warrant before making way for the police … remains undetermined today.

Equal Access for Military Recruiters

Rumsfeld v. Forum for Academic and Institutional Rights, Inc.

This case addresses the constitutionality of the Solomon Amendment, which “specifies that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution [will] loose certain federal funds.” A group of law schools object to this law, insisting that their antidiscrimination policies limitation on access to military recruiters because of the law school’s protestation of the military’s policy towards homosexuals is speech or expression, protected by the First Amendment. Before addressing the First Amendment arguments individually, the Court states that Congress’ power to “provide for the common Defense,” “raise and support Armies,” and “’provide and maintain a Navy’ … is broad and sweeping.” The Court also asserts, more than once, that Congress would have the power to simply require that which the Solomon Amendment entices through funding.

First, the Court determines the proper reading of the law. The Court rejects the reading which would permit the law schools to apply their antidiscrimination policy to recruiters, so long as the schools applied the policy equally to all recruiters, because the Solomon Amendment does not focus on content, but rather looks to the result. The Court determines that the requirement that the military recruiters be entitled to access at least equal to that “provided to any other employer,” and the fact that this alternative reading would, contrary to the purpose behind the law’s recent revision, “make it easier for schools to keep military recruiters out altogether,” necessitate the reading that “in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.”

The opinion addresses the First Amendment on all fronts. As to speech per se the Court holds that the law neither requires not prohibits speech when requiring colleges to email scheduling information to the extent that the college does so for other recruiters, and holds that the compelled speech is “incidental to the Solomon Amendment’s regulation of conduct.” As far as compelled speech is connected to the requirement that the colleges host government speech, the Court distinguishes this case from the prohibition on compelled speech because this case does not affect the complaining speaker’s own message, since “nothing about recruiting suggests that the law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”

In a footnote, the Court states that the law does not violate the First Amendment by requiring schools to subsidize Government speech because, as per the rulings of precedent, “[c]itizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech” (Johanns v. Livestock Marketing Assn) in which the dissent noted that the exception for compelled Governmental speech was relatively new.

As far as conduct is concerned, the Court finds that the law school’s conduct is expressive and thus protected by the First Amendment, not because of the conduct itself but by the speech that accompanies it. The Court also finds that the law passes the rule requiring that it advance a “substantial government interest” that would be achieved less effectively without the regulation, especially considering that whether or not other means might be adequate “is a judgment for Congress, not the courts.”

Regarding freedom of expressive association the Court holds that, as opposed the case of homosexuals in the boy scouts where the law forced the group to “accept members it does not desire,” “Recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students – not to become members of the law school’s expressive association.” The Court also holds that the Solomon Amendment does not make membership in the group less desirable.

This is the first opinion written by the new Chief Justice John Roberts.

Note: I completely ignored the spending power challenge - that the amount the universities would have to forfeit was unduly coercive - the idea being that after a great deal of time passes the grant could not be drastically conditioned without those conditions being coerced. Could this argument be based on a theory of reliance? That seems to run up against the competitive nature of politics.

(Boring) Presumption of Market Power in Patent Tying Schemes

Illinois Tool Works Inc. v. Independent Ink, Inc.

I have always found patent cases to be obscure, needlessly complicated and boring (this probably due to the fact that I know very little about patents at all). This case is no exception. In this case Court surveys its schizophrenic past regarding a presumption that carried over from patent law into antitrust law. The Court presumed, on and off since the late 1800’s, that the grant of a patent conferred market power automatically, and that to condition the sale of a patented product on the sale of another product unlawfully expanded the grant of a monopoly accompanying a patent. Both because Congress explicitly reversed that assumption in one aspect of the law, and because the bulk of scholarship has concluded that the underlying assumption regarding automatic market power is incorrect, the Court holds that market power must be demonstrated with evidence from here on out.

The Court also holds that because the petitioner appropriately relied on the previous rule, she should be entitled to amend the complaint and introduce the necessary evidence.

Does the Hobbs Act Forbids Violent Conduct Unrelated to Extortion or Robbery?

Scheidler v. National Organization for Women, Inc.

In this case the Court must determine whether a group of activists who tried to disrupt activities at a health care clinic through violence (among other things) has violated the Hobbs Act. The Court previously ruled that the statute requires no economic motive, and that the ‘extortion’ definition necessarily includes improper “obtaining of property from another,” and having decided that a woman’s right to seek medical services or the right of the doctors to provide such a service could not count as property for the purposes of this statute, the Court mandated that the extortion charges be dismissed. Therefore, in this case, the Court must determine “whether the Hobbs act forbids violent conduct unrelated to extortion or robbery.”

The Hobbs act states that “[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspired to do so, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section” has committed a crime. The question then turns on whether the Hobbs act makes it illegal to commit physical violence in order to simply ‘obstruct, delay, or affect commerce,’ or whether the group must have attempted to do so by robbery or extortion before it has violated this law.

The Court holds that the proper reading of the law requires that the physical violence be in furtherance of “robbery or extortion.” The Court reasons that this reading is more natural, it accords with the fact that Congress generally intends terms such as ‘affect[ing] commerce’ to be read as terms of art (referring to its powers under the commerce clause), the statute’s precursor made the requirement “crystal clear,” the act’s history contains nothing to the contrary, the act was amended during a general revision of the criminal code solely in order to consolidate it, and because an alternate reading would drastically broaden its scope. Additionally, congressional action has indicated that Congress did not believe the Hobbs act to cover the type of action at issue here.

Acknowledging the argument that “because the definitions of robbery or extortion … already encompass robbery or extortion that takes place through acts of violence” the words would be superfluous, the Court notes that petitioner found a small amount of additional work for those words, in the form of a hypothetical mobster who doe violence against a business which does not comply with his demand of payment on threat of violence.

All things considered, it seems likely that the Court reformulated the question, since such a simple question seems unlikely to have made it to the Supreme Court. And as you can see by the headline “Supreme Court Backs Abortion Protesters in Unanimous Ruling,” the media has, as usual, distorted beyond all recognition the question that the Court addressed.

The Rule of Reason and the Per Se Rule of Antitrust Price-Fixing

Texaco Inc. v. Dagher

Texaco and Shell collaborated in a “joint venture,” where two or more companies decide to share profits and losses, to refine and sell gasoline, named Equilon, but continued to sell gasoline under separate names. A class of station owners claimed that Equilon engaged in unlawful price fixing, under the Sherman Antitrust Act, when it set a uniform price for both brands of gasoline.

The first section of the Sherman Antitrust Act prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states.” Since this covers almost every large contract in existence, this has been interpreted into a “per se” rule, and a “rule of reason” (limiting only “unreasonable restraints.”) The per se prohibition on price fixing applies to “those agreements that are ‘so plainly anticompetitive that no elaborate study of the industry is needed to establish their illegality.’” Vertical price-fixing arrangement, the Court states, are subject to the rule of reason. Horizontal price-fixing arrangements, that is, arrangements between two or more competitors, are subject to the per se rule. Because the challengers admit that if the gasoline was sold under a single brand there would be no question of the legality of the scheme, and because joint ventures are not considered to be competitive within the venture, the per se rule is not applicable.

The lower court applied the doctrine of “ancillary restraints” which prohibits restrictions imposed by a legitimate business or corporation that are a naked restraint on trade, as opposed to those valid restraints which are ancillary to the legitimate and competitive purposes of the business association. The Court holds that the price-fixing in which Equilon engaged involved the core activity of the company, and that even if the ancillary restraints doctrine were applied, the price-fixing policy is clearly ancillary to the sale of Equilon’s own products.

Jurisdictional vs. Nonjurisdictional Matters

Arbaugh v. Y & H Corp.

Arbaugh worked as a bartender and waitress at a café and was, for the purposes of this opinion, concededly sexually harassed in such a way that she is entitled to compensation (constructive discharge). In the lower federal court, after Arbaugh won her case, her previous employer (Y&H) claimed that it did not fall under Title VII’s definition of an “employer” because Y&H did not employ 15 or more people. The application of the definition of “employer” was not contested before the trial ended. If this requirement, which is set out in the definitions section of the law, is “jurisdictional” the court would be required to throw the case out, but if it is an “essential ingredient,” or in other words, goes to the merits of the case and not to the subject matter for which federal jurisdiction is granted, the argument must have been made before the conclusion of the trial on the merits.

Federal courts have jurisdiction over cases arising under the laws, treaties, or the Constitution of the United States (including Title VII) and may exercise “supplemental jurisdiction” over state law claims “linked to a claim based on federal law.” Here, the Court explains that often in what it terms “drive by jurisdictional rulings” courts will dismiss cases for ‘lack of jurisdiction’, when some threshold fact has not been met, where the court should have dismissed the case ‘for failure to state a claim.’ In order to explain the nature of the distinction, the Court explains that “because [subject-matter jurisdiction] involves the court’s power to hear a case, [it] can never be forfeited or waived,” and courts must investigate the matter even when it is not contested. Also, where subject-matter jurisdiction turns on certain facts, the judge may review that evidence and resolve the dispute. Finally, where subject-matter jurisdiction is lacking the court must dismiss the claim in its entirety.

The Court then sets out a rule to discern subject-matter requirements from merits-of-the-case requirements: “when Congress does not rank a statutory limitation on coverage as jurisdictional, courts should treat the restriction as nonjurisdictional in character.” Simple, straightforward, unanimous.

Evidence at Sentancing Must Go to 'How,' Not 'Whether'

Oregon v. Guzek

Guzek was found guilty of murder and sentenced to death. For an alibi Guzek brought his mother and his grandfather, who both testified that he had been with “one or the other at the time of the crime.” On appeal the Oregon Supreme Court ordered a new sentencing trial, and finding procedural violations at each, ordered subsequent sentencing trials. Here, the Court addresses three arguments that Guzek puts forth to the effect that he is entitled to introduce new evidence, in the form of testimony by his mother and grandfather, showing that he was not at the scene of the crime.

The Court first addresses the question of whether or not it has proper jurisdiction. Guzek argues that state law provides him with the right to introduce live testimony. Oregon law allows him to introduce “evidence … relevant to [the] sentence including … mitigating evidence relevant to … [w]hether the defendant should receive the death sentence,” which the Oregon Supreme Court held to be limited to the evidence the Federal Constitution grants Guzek a right to introduce. Since the Oregon court decided that this live testimony was required by the constitution (in Green v. Georgia), the Court here finds proper jurisdiction over a case decided on federal grounds. Additionally, the state law that allows Guzek to recall witnesses called at trial to introduce relevant evidence was found to allow his mother’s live testimony only for the federal definition of ‘relevance.’

The Court characterizes the evidence that Guzek wants to introduce new, inconsistent with his prior conviction, and shedding no light on the manner in which the crime was committed. The Court describes the precedents on which the Oregon court relied, statements such as those requiring that the sentencer be able to consider “any of the circumstances of the offense that the defendant proffers” as evidence regarding “how, not whether.” The three circumstances that convince the Court that the State can preclude the evidence are 1) this evidence goes to whether the crime was committed, not how, 2) “the parties previously litigated the issue to which the evidence is relevant … the evidence thereby attacks a previously determined matter,” and 3) the negative impact of the rule is mitigated by the fact that all previous evidence from the trial can be introduced in transcript form. The effect: evidence at sentancing should not be used to introduce residual doubt.

Scalia and Thomas write separately to state that the third circumstance is inconsistent with the first two, and should be left out.

Meaning of “Negligent Transmission” and Sovereign Immunity

Dolan v. Postal Service

The U.S Postal Service waives the sovereign immunity it retains as a governmental agency under the executive branch in cases of "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred,” but excludes “[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter.” Barbra Dolan is suing USPS because she tripped over letters or a package that were negligently placed at her door. The question in this case is whether the previous exclusion applies.

The Court concludes that “context and precedent require a narrow reading of “negligent transmission,” restricting its meaning to negligence causing mail to be lost or arrive late, damaged, or to the wrong place. That “negligent transmission” is followed by the terms “loss” and “miscarriage” the Court argues indicates that “negligent transmission” should be limited to “failings in the postal obligation to deliver mail in a timely manner to the right address.

Previously, in Kosak, the Court held that when trying to waive immunity as to injuries resulting from auto accidents where USPS employees were at fault “the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility … excluding, by implication, negligent handling of motor vehicles.” The majority, here, sees no difference in the distinction between transmission and postal-car accidents and the distinction applied in this case. Also, those instances where immunity is retained are, and were when the law was written, somewhat delineated by those instances covered by postal insurance.

Justice Thomas, in dissent, argues that the meaning of the word transmit, and the meaning it carries throughout other statutes, includes the final delivery. Justice Thomas rejects the idea that the rule of noscitur a sociis (a word is known by the company it keeps) requires a more limited construction of “transmission” because neither “loss” nor “miscarriage” carry that requirement, and argues that the appeal to legislative intent in the Kosak was a direct appeal to intended statutory purpose in that case, not an appeal to principle. Thomas also argues that Kosak was concerned with acts, not consequences (as the majority tended to imply), and that the Government was due a strict construction in favor of the sovereign.

Agency Principles of Sec. 1981 (Civil Rights Act)

Domino's Pizza, Inc. v. McDonald

John McDonald (a black man) is the sole shareholder and president of JWM Investments, which entered into several contracts with Domino’s pizza. Domino’s agent, Debbie Pear, refused to execute estoppel certificates. The relationship between the two companies became progressively worse. At one point Pear said “I don’t like dealing with you people anyway.” JWM filed for chapter 11, and settled the breach of contract claim. McDonald filed his own (Sec. 1981) claim, arguing that Domino’s had broken its contracts because of racial animus, and seeking damages. The District court held that even as a sole shareholder and president, since the contracts were between JWM and Domino’s McDonald had no claim. The Ninth Circuit held that where there are “injuries distinct from that of the corporation,” a nonparty could bring suit.

Section 1981 was originally Section 1 of the Civil Rights Act of 1866, and protects the equal rights of all “persons within the jurisdiction of the United States [to] make and enforce contracts” without respect to race. The Court here holds that the right to “make and enforce contracts” did not include the right to “act as an agent for someone else contracting. Instead, the Court argues, “make” compliments the word “enforce,” meaning that 1981 only entitles all persons to “give and receive contractual rights on one’s own behalf.” “1981 offers relief when racial discrimination blocks the creation of a contractual relationship, as well as when racial discrimination impairs an existing contractual relationship, so long as the plaintiff has or would have rights under the existing or proposed contractual relationship.” Congress chose to amend the law by including post-formation conduct, but at the same time included reference to a “contractual relationship.” Just as Domino’s had no claim to McDonald’s property during the company’s chapter 11, McDonald has no claim under the contract between only Domino’s and JWM.

The Court then explains that the prior cases that McDonald cites to demonstrate that “contractual privity cannot be a sine qua non of a Sec. 1981 claim” actually decide much narrower questions. Finally, the Court rejects his arguments for a change in public policy.