The Road from Texas to the End of the Second Reconstruction through the FHA

On October 2, the Court granted cert on a deceptively simple question: whether disparate impact claims are cognizable under the Fair Housing Act.  The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  This is the Court's third attempt since 2012 to answer this question, having granted cert in two prior cases, only to see the parties settle their disputes before the Court could answer it.  The most recent case, Twp. Of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., was dismissed on November 15, 2013.  Eleven months later, the Court is ready to try again.

One need not be terribly cynical to wonder why the Court is so insistent.  

I smell a rat.

As Hobby Lobby Collides with the End of the Second Reconstruction Through the Fair Housing Act

A week ago, the Court granted cert in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  The case involves a challenge to the allocation of low-income housing tax credits under the Fair Housing Act.  The narrow question for the Court is whether the Fair Housing Act recognizes disparate impact claims.  But a far more important and far-reaching question lies in the background of the case: what is the constitutional status of disparate-impact claims?

Put this way, this question takes me to the end of last Term and Hobby Lobby.  While the case was hailed at the time as either a victory for religious freedom or an attack on women's health care, a crucial aspect of this debate has gone almost unnoticed: how Justice Alito's opinion for the Court appears to short-circuit the ongoing conservative project to end the Second Reconstruction.

Further Thoughts on the Court and the Future of the Voting Rights Act

The only question before the Court in NAMUDNO was whether the conservative justices would have the gumption to strike down one of the "crown jewels" of the civil rights movement. For reasons that remain obscure and the subject of much conjecturing, they didn't. End of story.

This pretty much sums up the history of the constitutionality of the Voting Rights Act. From the moment the Court first took up the question, the constitutionality of the Act has hinged on the Court's willingness to strike down the statute.

Nobody understood this better than the Warren Court, and particularly the "wily" Justice Brennan.



The question then, as it is now, can be stated simply: "Has Congress exercised its powers under the Fifteenth Amendment in an appropriate manner with relation to the States?" The Court's initial response, in the first draft of Chief Justice Warren's opinion in South Carolina v. Katzenbach, is illuminating. Citing Ex parte Virginia, the Chief Justice explained that "Congress has even broader remedial powers than the courts to effectuate the constitutional prohibition against racial discrimination in voting." (italics mine)

Justice Fortas reacted to this argument with concern: "I wonder if this adds enough to the argument to offset the possibility that it may be used in unforeseeable ways to support arguments to narrow court orders." In response, the language changed as follows: "Accordingly, in addition to the courts, Congress has full remedial powers to effectuate the constitutional prohibition against racial discrimination in voting."

The Court wished to grant Congress much leeway to solve this difficult problem, but it worried that doing so would lead a future Congress to take on the Court. Recognition of this dilemma led Justice Brennan to Footnote 10, and what became known as the Morgan power.

Justice Brennan could see a bigger problem in Katzenbach. He worried that basing much of the Court's holding on the findings in the record would lead the Court down a path it would likely regret. Take a look at his notes from his draft:



Focus on the language on the bottom left of the page: “It seems to me one thing to summarize the facts put before the legislature, and another to do what the Chief seems to be up to in this [section]—accepting the Congressional findings because they correspond to our own.”

He continued his questioning on the next page:



To Justice Brennan, Warren's draft focused on the wrong issue: “Do we judge statutes by no. of witnesses[,] length of hearings[,] unanimity of vote? The Chief is judging the legislative product as if it were a judicial one.”

Justice Brennan returned to this criticism once more:



His language is nothing short of prescient: “In several places, like this one, the Chief comes close to writing this as if it were an advisory opinion. I think this might be avoided. Are we reviewing the sections, any more than we are the adequacy of the hearings?”

These questions underscore the political savvy of Justice Brennan. He could see Katzenbach v. Morgan just down the road, a case devoid of the rich evidentiary record found in the South Carolina case. In this light, compare Brennan's opinion in Morgan with Warren's opinion in South Carolina. Their different approaches to the record was stark, as Justice Harlan pointed out in dissent. Brennan wished to avoid the debate all together.

The implications for our debate today are also quite clear. First, the debate over findings that dominated the scholarship post-Boerne is almost as old as the Act itself. Second, Justice Brennan wished to avoid precisely the kind of review advocated by Justice Thomas in his dissent in NAMUDNO. This was an area for Congress to legislate, and the Court would only subject the statute to low level rationality review. Questions of degree were for Congress to assess and determine, not the Court.

Tell it to the conservatives.

Thoughts on NAMUDNO

The Supreme Court handed down its decision in NAMUDNO v. Holder this morning.

And rather than confront the big issue head on, the Court essentially punted, setting the big question aside for another day. The special provisions of the Voting Rights Act remain in the books, ready for the next challenge.

The case raised two questions: First, can the utility district, which is neither a county nor a parish and does not register voters (and thus not a "political subdivision" under the explicit statutory definition) bailout from coverage of Section 4 of the Act? And second, if the utility district cannot bailout, then they argued that the preclearance requirements are unconstitutional.

The Court only reached the first question and concluded -- in a surprising 8-1 opinion authored by the Chief Justice -- that the utility district can attempt to bailout under section 4. While invoking the "constitutional avoidance" doctrine, in other words, the Court disposed of this challenge on statutory grounds. I have two initial thoughts about NAMUDNO and the Court's approach.

(1) Why would the Court avoid the constitutional question? Anybody who read the transcript of the oral argument could appreciate that the constitutionality of the Act rested on uncertain ground. Those who count votes could see at least 4 votes against the Act, and Justice Kennedy seemed a likely fifth vote. How did we get from that state of affairs to the decision we got today? One answer may very well be that the conservatives could not get Kennedy to go along. This is a big step, after all, and Kennedy might not be ready to take it quite yet. If this is true, then this outcome is the best that the conservatives could get, and the "liberals" were happy to go along, as this was a much better outcome than they had a right to expect.

If I am right about this, then the Act remains on solid constitutional ground for the foreseeable future. Justice Kennedy could always change his mind, of course, but until then, constitutional challenges to the Act are likely to go the way they always have. This is now the sixth challenge to the Act since its initial enactment in 1965 (Katzenbach; Morgan; Georgia; City of Rome; Lopez; NAMUDNO), and each and every time, the Court has deferred to the wishes of Congress. So the real question for the future is, why would the Court change its mind? What would have to happen for the Court to strike down this law? These questions lead me to my second thought . . .

(2) The Puzzle that is Justice Thomas. Eight justices were willing to set down the constitutional question and decide the case on statutory ground. Justice Thomas was not. He not only wanted to reach the constitutional question, but he also would strike down the special provisions of the Act as beyond the powers of Congress to enact.

This is remarkable. Remember that Justice Thomas is one of those rarified "classical jurists" who, as opposed to the "liberals," does not make law from the bench. Yet here he is in NAMUDNO, wishing to strike down portions of the Act because Congress did not put in the record enough evidence to satisfy him about the need for the statute any longer. Make no mistake: Congress had plenty of evidence in the record, thousands of pages worth. But the evidence Congress did have was not the evidence Justice Thomas wanted.

To Justice Thomas, Congress must have evidence of intentional racial discrimination in order to justify the extension of the Act any longer. In fairness, this makes some sense: the argument dates back to City of Rome, when the Court decided on the same day that the Fifteenth Amendment embodied a standard of intentional racial discrimination. Note: Could Congress prohibit state voting practices devoid of purposeful discrimination but only with a discriminatory effect? According to Justice Thomas, the answer is no. The full Court, in City of Rome, disagreed. Shouldn't Justice Thomas at the very least recognize this disagreement? And wouldn't a "classical jusrist," uninterested in writing law but only in interpreting it, side with all the prior rulings upholding the constitutionality of the Act?

To state the obvious: we are about to embark on a historic debate on the nomination of Judge Sotomayor to the Court. I am sure we will hear a lot about the conservative justices and their penchant for interpreting law, not making it, for calling balls and strikes, not for writing the rules of the game. When you hear these comments, think about Justice Thomas in NAMUDNO. Think also about the upcoming Ricci case. Talk to me then about judicial activism and "classical judicial jurists."