In Other, Other SCOTUS News: ‘Puter Pontificates - Texas Housing v. Inclusive Communities Edition

Ruth Bader Ginsburg responds to ‘Puter’s assertion that Supreme Court liberals rewrite Congress’ enactments to suit their preferred policy goals, saying “I’ve got a lifetime appointment, bitch! Ain’t nothin’ you can do to stop me!”

Editor’s Note: This was originally published on June 26, 2015 at The Ancient & Noble Order of The Gormogons.


Difficult to believe based on yesterday’s news coverage, but the Supreme Court issued another important decision yesterday as well. Justice Kennedy, writing for the majority*, held disparate impact claims are cognizable under the Fair Housing Act (“FHA”). You can (and should) read Justice Kennedy’s opinion and the two dissents here, in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.

Here are your takeaways:

  • Disparate impact analysis may now be used to bring claims against governmental and private entities under the FHA.
  • Disparate impact analysis is used for “removal of artificial, arbitrary and unnecessary barriers.”
  • “[R]acial imbalance … does not, without more, establish a prima facie case of disparate impact.”
  • A claim based solely on statistical disparity is insufficient. A claim must also show “defendant’s policy or policies causing that disparity.”
  • “[P]rompt resolution of these cases is important. A plaintiff who fails to allege facts at the pleading stage or produce statistical evidence demonstrating a causal connection cannot make out a prima facie case of disparate impact.”
  • “Remedial orders in disparate-impact cases should concentrate on the elimination of the offending practice that ‘arbitrar[ily] … operate[s] invidiously to discriminate on the basis of rac[e].’ If additional measures are adopted, courts should strive to design them to eliminate racial disparities through race-neutral means.” (citations omitted)

‘Puter left out the majority’s lengthy discussion analogizing the FHA to other statutes (Civil Rights Act, etc.) in which the Court previously permitted disparate impact claims. ‘Puter also notes Justice Kennedy is mightily concerned with disparate impact claims bogging down the work of housing authorities and private property rehabilitators, and notes courts must take care to prevent this.

Justice Kennedy’s concerns aside, his decision will do exactly what he fears: bog down otherwise good and valid projects as local racial grievance mongers community organizers cry “racism.” Permitting plaintiffs to sue based on nothing more than a statistical showing of a disproportionate impact on minorities unconvincingly tied to a regulation or policy is a formula for chaos.

‘Puter notes also the majority’s complete disregard of the constitutional separation of powers. The majority opinion usurps the legislature’s Article I powers, rewriting the statute to contain a remedy not otherwise provided for in the FHA’s text. In this respect, Justice Kennedy’s opinion is of a piece with Chief Justice Roberts’ opinion in King v. Burwell.

In sum, the Supreme Court compounded its earlier errors by reading a remedy into a statute that Congress did not provide. Congress knows darned well how to write into a law what it intends. It is not the Court’s job to do so for Congress. If a preferred or desired remedy is not available in the law, the Court should say so, and leave it to Congress to amend (or not) the statute as it sees fit. When a bare majority of nine, unelected lifetime appointees can rewrite statutes as they see fit, we may as well not have a Constitution.

Both Justice Thomas and Justice Alito’s dissent ably dismantle the majority’s premise and argument. You would do well to read them both.

In one day, two separate “conservative” Justices wrote opinions weakening the rule of law and flouting separation of powers. To say it was not a good day for Constitutional government is an understatement.

* Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan constituted the majority. Justice Thomas wrote a separate dissent. Justice Alito wrote a dissent in which Chief Justice Roberts and Justices Scalia and Thomas joined.

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