January 21, 2015

The third case is the charm for contested disparate impact oral argument

By The third case is the charm for contested disparate impact oral argument

PLF’s Todd Gaziano, Executive Director of PLF’s DC Center and Senior Fellow in Constitutional Law, attended the oral argument at the U.S. Supreme Court today in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc.  The important issue before the Court is whether the Fair Housing Act (FHA) prohibits race-neutral and lawful actions that have an adverse disproportionate effect on certain races.

The following is his report:

Although the demonstrators the Supreme Court marshals had to evict from the courtroom were protesting the fifth anniversary of the Citizens United decision, the hot bench for the Fair Housing Act (FHA) “disparate impact” oral argument proved that passions were high on that issue as well.  It’s always risky to place a lot of weight on justices’ questions and remarks during oral argument, but seven of eight justices who spoke seemed to follow a predictable pattern based on their prior opinions.

Justice Scalia’s questions to Texas Solicitor General Keller about the 1988 amendments to the FHA were the only ones arguably out of character.  Scalia asserted that the exceptions to disparate impact liability in the 1988 amendments could be read to mean that Congress was codifying the prevailing lower court opinions that the 1968 FHA allowed such disparate impact liability.  Justice Alito eventually came to the Texas SG’s defense, who was frequently interrupted, but Keller eventually explained what those amendments did consistent with no disparate impact liability.  And Scalia’s questions to U.S. Solicitor General Verrilli on the same issue suggested he may have been playing devil’s advocate to place the 1988 amendments in the proper context.

The justices’ prior opinions on the issues in play are still a more reliable indicator than questioning for most justices, but based on that, knowledgeable court watchers were eager to hear from Justice Kennedy, who’s concurrance in a Seattle school case in 2007 indicated he might be in play. U.S. Solicitor General Verrilli cited that opinion. But the only statement Kennedy made, which itself is a little unusual, followed hypotheticals that Chief Justice Roberts offered showing that the US’s position could result in potential disparate impact liability no matter what a state housing authority did.  Justice Kennedy said that result “seemed strange.” Verrilli tried to explain why it was not strange, but had to concede the underlying issue.

At one point, Justice Alito asked Solicitor General Verrilli whether the government was due less deference for its FHA regulations because it settled cases pending before the High Court prior to issuing them. Verrilli’s second response drew the most laughter of the hour, in which he essentially said that a lack of government efficiency was the reason for the delay in issuing the regulations, not pending litigation, and that the administration’s identical position in formal adjudications from 1992 would have also been entitled to deference in any event.

The constitutional avoidance canon may obviously control in this case, and there was some discussion from several justices and advocates on it.  Verrilli’s argument against invoking the avoidance canon was not very convincing to my ear, but there are still paths the justices could take to avoid the avoidance cannon. We’ll probably only know in late June.

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