The Clash of Old and New Fourth Circuit Ideologies: Boyer-Liberto v. Fontainebleau Corp. and the Moderation of the Fourth Circuit

Abstract

The Fourth Circuit has changed.

What was, a few short years ago, the most stridently conservative Court of Appeals in the country, has become — since 2010 — a moderate, if not slightly liberal, court. Both the anecdotal and the empirical evidence bear out the Fourth Circuit’s ideological shift. Further, based on the empirical evidence, the cause of this ideological shift appears to be the influx of President Obama’s successful nominees to the Fourth Circuit bench beginning in 2010. While this shift has been on display in several high profile, politically charged cases including, among others, Bostic v. Schaefer (declaring Virginia’s ban on same-sex marriage unconstitutional) and King v. Burwell (the “ObamaCare” tax subsidy case). The shift also vividly appears in more “run of the mill,” but no less significant, decisions outside of the political spotlight as well. One such decision in 2014 was Boyer-Liberto v. Fontainebleau Corp., in which the “old” Fourth Circuit and the “new” Fourth Circuit clashed over the reasonableness of an employee’s conduct in reporting a racial slur in the workplace.

Keywords: Fourth Circuit, judicial decisionmaking, empirical, quantitative, court of appeals, employment, harrassment, hostile work environment, retaliation

JEL Classification: C12, H11, J17, K31, K41