Thursday, June 25, 2015

How the Two Major Parties Differ, and Why Who Appoints Fed Judges Matters, Exhibit 8,502:

"Supreme Court upholds housing discrimination law"  (USA Today)

No doubt the predictable howling erupted in right-wing media today over the Supreme Court's Inclusive Communities Project decision.  So I'll just note that, (1) the decision is in accordance with decades of Supreme Court precedent, and (2) the disparate impact claim is an important tool in combating housing discrimination.  As a practical matter, unless an individual defendant, an agent of a defendant entity, or a local lawmaker debating a challenged policy pulls a Donald Sterling and says a bunch of nonsense while being (lawfully) recorded - which rarely happens - intent can be *extremely* difficult to prove.  

Morgan Williams, General Counsel to the National Housing Law Forum, does a great job of explaining the decision - and its basis - here.  NAACP Legal Defense Fund Special Counsel John Paul Schnapper-Casteras also provides informative insights.  If you'd like to better understand the decision, give 'em a read - while both authors are intimately familiar with fair housing law, the pieces avoid the abundance of jargon that helps attorneys sound like they possess a special, magical sort of knowledge far beyond the reach of mere mortals.  

Note: some of the other commentators on SCOTUS-blog read Justice Kennedy (who authored the majority opinion) as worrying that the decision could be interpreted to place developers or public housing agencies in a damned if you do, damned if you don't type of double-bind.  But he's quite explicit in stating that neither the FHA nor this decision have that effect:  

"The FHA does not decree a particular vision of urban development; and it does not put housing authorities and private developers in a double bind of liability, subject to suit whether they choose to rejuvenate a city core or to promote new low-income housing in suburban communities."  At page 19, page 23 of the PDF.

Analyzing the effect of Supreme Court decisions often requires an abundance of examination and consideration, even by those well-immersed in the area of law impacted, and the peculiar facts of this case leave me wondering about how it will play out on the ground.  But consideration of other ripple effects that may be less desirable for fair housing advocates will have to wait for another time and day.

For the time being - especially after the past decade's decisions eviscerating the Voting Rights Act, hampering affirmative action efforts, and barring use of race as a criteria in school assignments to correct for de facto segregation in K-12 schools - it's just a relief that five members of the Court actually acknowledged the continuing existence of racism and the deleterious effects of covert racism.

A final note, because I can already hear the lament about "judge made law" sure to come from Mike Huckabee and innumerable others who love that line of rhetoric.  This is *not* "judge-made law.  This is our Court functioning as it is supposed to - following a long line of precedent, and because the language of the FHA itself is vague or unclear in part, bringing to bear the clear indications of Congressional intent with respect to how this law is to be interpreted and applied.

By 1988, federal trial and appellate courts across the nation had interpreted the FHA as providing the ability to assert a violation by proving that a given policy has a disparate impact on a segment of society.  During Congress's 1988 FHA amendment process, language was proposed to eliminate any vagary and eliminate the disparate impact cause of action.  That language was rejected.  Meanwhile, other language was adopted which only makes sense if the disparate impact claim exists - otherwise it's superfluous.  

So no, it's not judge-made law.  It's firmly Congressionally-mandated - and Reagan-approved. ;) 

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