Going into this week's argument in Inclusive Communities Project, a Supreme Court case that will determine the future of the Fair Housing Act, all eyes were on Justice Kennedy. It's often Justice Kennedy who casts the deciding vote in cases about the strength and breadth of civil rights laws. As those of us in the courtroom waited for the justices to take the bench, we were eager to hear what questions he would ask.
But, instead, Justice Scalia turned out to be the center of attention. Almost as soon as the Texas attorney general stepped up to the podium to argue for a weakened Fair Housing Act, Justice Scalia started asking him some seriously hard questions.
Most importantly, Justice Scalia pointed out that when Congress amended the Fair Housing Act in 1988, it incorporated language that wouldn't make any sense without the disparate impact standard, which prohibits policies that have a discriminatory impact, regardless of whether those practices were adopted with a discriminatory intent. He suggested that this language alone might "kill" Texas's case. And Justice Scalia did not seem at all convinced by the attorney general's answers. In fact, he stated at one point that he found it "hard" to read the statute "in any other way than there is such a thing as disparate impact."
Texas then tried to argue that the disparate impact standard would violate the Constitution's guarantee of equal protection, by forcing landlords, banks, and governments to consider the racial impact of their policies. Of course, that argument only makes sense if you think that the equal protection clause, which exists substantially to protect people of color from racial discrimination, is actually offended by policies that seek to guard against racial discrimination. We don't.
And, coming out of the argument, it certainly looks like the straightforward text of the Fair Housing Act could carry the day. That's important because we still have a long way to go before we achieve the goals Congress had when it passed the act. As Justice Ginsburg put it yesterday, Congress "meant to undo generations of rank discrimination" and "to replace ghettos by [ ] 'integrated living patterns.'"
Much of this country is still deeply segregated, and that segregation enables a host of other problems that we're struggling with, among them discriminatory policing, astounding pollution in communities of color, and, as the ACLU described in its amicus brief in this case, the targeting of those communities by predatory lenders. On top of problems related to racial segregation, the law's disparate impact standard helps us deal with housing discrimination against people with disabilities and victims of domestic violence. To fix all that, we need the strongest possible Fair Housing Act.
Let's hope Justice Scalia helps stop Texas from watering it down.