Analysis
An observer who left the Supreme Court chamber halfway through Wednesday’s argument in a major civil rights case could easily have concluded that Justice Antonin Scalia is ready to give the law in that case a much broader scope to protect racial and other minorities as they seek places to live. But, as it turned out, there was a “second” Scalia on the bench later in the argument, so it’s best not to count his vote yet.
At issue in the case of Texas Department of Housing and Community Affairs v. The Inclusive Communities Project is how far Congress went in 1968 in banning racial discrimination in home sales or rentals: did it only ban intentional bias, or did it also outlaw housing policies that simply have a negative effect on minorities? Justice Scalia, it seemed, was on both sides of that issue, reflecting a clear division across the bench.
It was no surprise at all that Texas’s lawyer, state Solicitor General Scott A. Keller, was pummeled with challenges from the Court’s more liberal members as he opened the argument with all of the state’s reasons why the 1968 law does not permit “disparate impact” lawsuits in housing cases. Justice Ruth Bader Ginsburg, for example, reminded him that Congress had intended the “good goal” of “replacing ghettos with integrated communities” and that purpose showed it wanted the law to be sweeping in scope.
But Keller very likely was not prepared — and perhaps few in the audience were — for Justice Scalia, who calmly laid out a scenario that would “kill” the state’s case against a “disparate impact” remedy. “What hangs me up,” Scalia said, is that Congress in 1988 made some changes in the twenty-year-old law that showed it was fully aware that such a remedy was well-established.
“We look at the entire law,” Scalia continued. “We have to make sense of the law as a whole.” Noting that, up to the time that Congress added to the law in 1988, every federal appeals court had endorsed the broader reading of the law, Scalia said it would be “very strange” if Congress passed those amendments just to prevent courts from reaching that result.
A few minutes later, after Justice Samuel A. Alito, Jr., had tried to shore up Keller’s argument, Justice Scalia again confronted Keller, telling him that “it is not just what Congress did” specifically in 1968 or 1988. “You have to look at the whole law, and, when all parts are read together, there is such a thing as ‘disparate impact.’ You don’t look at each little piece, you look at the whole law.”
The 1988 changes in the law, exempting some scenarios from “disparate impact” liability, “make no sense unless there is ‘disparate impact.’ Congress didn’t prohibit something that doesn’t exist.” Scalia’s thrusts lingered in the air as Keller went through the rest of his argument, under continued heavy challenges from the Court’s liberal members.
Could it be that Justice Scalia would join with those Justices to make a majority to expand the reach of the Fair Housing Act? A fair prospect, it seemed. But the argument was not over.
Almost as soon as Dallas attorney Michael M. Daniel, representing the Inclusive Communities Project, began defending that proposition, he encountered Justice Scalia, now newly skeptical about that. He started asking whether allowing “disparate impact” liability would force housing developers into constitutionally suspect race-based policies. That, of course, is Texas’s fallback argument: local governments will be forced to adopt racial quotas to defend themselves against such liability.
Indeed, that fallback argument seemed very likely to attract the votes of at least some of the Court’s more conservative members, perhaps including Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy, both of whom have deep doubts about race as a guiding factor in government policy.
And, maybe Justice Scalia. It would not be entirely illogical for him to conclude that Congress meant the law to have a very broad sweep, but that, in the end, that might exceed its powers because it would force the development of race-conscious housing remedies.
Along the way in Daniel’s argument, Justice Samuel A. Alito, Jr., also seemed to be lining up against a “disparate impact” remedy, asking skeptically whether Daniel’s whole case rested on the claim that what Congress did in changing the law in 1988 proved what it had intended the Fair Housing Act to be as a whole.
It was then the federal government’s turn to defend its years-long position that the law does apply to “disparate impact” violations, and Solicitor General Donald B. Verrilli, Jr., quickly made it clear that he would try to persuade the Court that the 1988 amendments settled the issue. At least they show, he said, that “disparate impact” liability was a “permissible” reading of the law, and therefore the Court should defer to that reading by the expert agency charged with enforcing the Housing Act.
Verrilli had considerable difficulty with Chief Justice Roberts, who pressed repeatedly to find out just how local housing authorities could be expected to deal with “disparate impact” claims when deciding whether to put new housing into poor areas or affluent neighborhoods in their communities.
When Verrilli said that local housing developers might well win a “disparate impact” case whichever location in a community they chose for a new pr0ject, Justice Kennedy pronounced that position “very odd.”
Trying to counter the Texas argument that “disparate impact” had to be read out of the law to avoid constitutional problems with race-based housing policies, the Solicitor General tried to dismiss that, suggesting that there were many ways a housing developer could adopt “race-neutral” policies when confronted with “disparate impact” claims. At that point, it did not appear that Justice Scalia was eager to hear that.
