June 17, 2025

The Supreme Court’s Continued Backpedalling on Precedent

By Laura Trachtman

The Supreme Court recently denied a petition for certiorari in Nicholson v. W.L. York, Inc. d/b/a Cover Girls, et al, and refused to hear the claims of the petitioner, Chanel Nicholson. In so doing, the Supreme Court has again flouted clear precedent and failed to allow Nicholson access to the courts to remedy a discriminatory action.  

In an appeal from the Fifth Circuit, which covers Texas, Louisiana and Mississippi, Nicholson asked the Supreme Court to overrule the Circuit Court’s determination that her claims were time barred.  When the Supreme Court voted to refuse to hear her appeal, Justice Jackson, with Justice Sotomayor joining, wrote a pointed dissent.  

First, the facts.  Nicholson, a Black woman, worked as an exotic dancer in several clubs in the Houston area, starting in 2014. Race discrimination pervaded the clubs where  she worked, and on multiple occasions she was refused entry to the clubs to work, with management stating that there were too many Black women already working. This was in contravention of her employment contract, which stated that she could make her own hours, and 42 USC § 1981, which is the federal cause of action for claims of intentional race discrimination in contracting.  Clearly, the basis for which she was refused access to work – that there were too many Black women already working – was applied only to women of color, and not to white women, hence the basis for a discrimination lawsuit.  

Next, the precedent. The statute of limitations for § 1981 actions is four years, and the claim accrues on the date that the act occurred.  For every new discriminatory act, the statute of limitations restarts, but sometimes, actions occur that are not, in and of themselves, discriminatory, but rather reflect the “continued effects” of earlier discriminatory actions. Those actions do not restart the clock. And that’s where the trouble starts. 

The Fifth Circuit determined that each time Petitioner Nicholson was refused work at the clubs, it did not constitute a new discriminatory act but was merely a continued effect of earlier discriminatory actions, and did not restart the clock.  Mind you, Nicholson was refused work solely due to her race, as white women were allowed into the club to work at times when she was turned away.  Accordingly, the Fifth Circuit determined that Nicholson’s claims were time barred, and dismissed her case.  When Nicholson applied for a writ of certiorari to the Supreme Court, it was denied.  While the Supreme Court isn’t required to grant cert to every Petitioner who requests that the Supreme Court review their case, the Supreme Court could have reviewed this case and corrected the Fifth Circuit’s obviously erroneous decision, but chose not to.  That’s where the problem lies. 

Why?  Because when a new act of discrimination occurs, it restarts the clock.  Not only that, but if the act is one in a continuing course of action, then not only does the most recent act start the clock, it can drag the previous acts within the statute of limitations for certain causes of action.  This is the exact opposite of what the Fifth Circuit held.  

In other words, the Fifth Circuit should have held that the most recent acts of discrimination restarted the clock – take the most recent act and count backwards.  What the Fifth Circuit actually did was take the act that was furthest away in time and go forward.  This is contrary to the established law of the land, and should be wildly disturbing to anyone who’s paying attention. The Supreme Court should have granted cert and overruled the Fifth Circuit’s decision, but they did not. 

The reason I personally am so upset about this is for a couple of reasons. One, for better or for worse, I trust in our legal system to do what’s right for the American people. Our legal system is built on precedent, and both of the instances I discuss above – the Fifth Circuit’s incorrect analysis and the Supreme Court’s failure to correct the same – constitute a wildly alarming detour from precedent, which serves to undermine the entire basis for our legal system.  Furthermore, this isn’t even a hard issue to decide – it’s not Delaware Chancery law or anything, it’s fairly basic, which means one of three things: 1) that the Fifth Circuit and the Supreme Court just didn’t care whether they were issuing a correct decision, or 2) they didn’t understand the legal issues, or 3) the worst option, that they know exactly what they’re doing and are doing it on purpose to disenfranchise our vulnerable citizens. 

Finally, this is not the first time that the Supreme Court has deviated from settled precedent.  Yes, I’m talking about Roe v. Wade. If our Supreme Court fails to respect precedent, in violation of our legal system and their oath to “do equal right to the poor and to the rich”, it’s a slippery slope to chaos and the end of our society as we know it.