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.