The contours of the supreme court’s civil rights counterrevolution

Lynda G. Dodd

Research output: Chapter in Book/Report/Conference proceedingChapter


Although the Supreme Court and federal courts participated in an “inspired” partnership with federal agencies in the initial decades of the rights revolution, since the late 1980s, the Court has played a key role in a counterrevolution in the development of the civil rights state. This civil rights retrenchment dates to the 1970s and picked up steam in the Supreme Court during the 1980s. As this chapter will show, although congressional overrides initially held the Court's counterrevolution at bay, increasing polarization and gridlock during the Obama presidency allowed the courts a freer hand in curtailing private enforcement of civil rights. A full assessment of the fate of the rights revolution in the twenty-first century requires an examination of both the procedural and substantive doctrines developed by the Supreme Court. As Stephen Burbank and Sean Farhang demonstrate in the previous chapter, the Supreme Court opinions regarding the substantive provisions of civil rights statutes have moved in a less conservative direction than have the procedural rulings regarding access to the federal courts and remedies. Extending this analysis, this chapter examines the Court's procedural and substantive doctrines affecting the private enforcement of civil rights in employment. The extensive literature on the legacy of the Rehnquist Court and the first decade of the Roberts Court has overwhelmingly focused on constitutional issues. In contrast, civil rights statutory opinions interpreting Title VII, Section 1981, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) are rarely discussed outside of law reviews, perhaps because these statutory doctrines are notoriously complex and have grown more convoluted over time. This chapter wades into what other legal scholars have often referred to as the murky “swamp” of the Court's employment discrimination doctrines to assess the ways in which the Rehnquist and Roberts Courts have changed the course of the rights revolution. In doing so, it highlights two features of the Court's counterrevolution, the first of which is its interpretive methodology and its consequences. Textualist methods have so infiltrated the Court's employment discrimination opinions over the past twenty-five years that today it would be rare to find opinions like Weber, replete with lengthy debates about the legislative history of Title VII.

Original languageEnglish (US)
Title of host publicationThe Rights Revolution Revisited
Subtitle of host publicationInstitutional Perspectives on the Private Enforcement of Civil Rights in the US
PublisherCambridge University Press
Number of pages43
ISBN (Electronic)9781316691199
ISBN (Print)9781107164734
StatePublished - Jan 1 2018
Externally publishedYes

All Science Journal Classification (ASJC) codes

  • General Social Sciences


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