With Big Decisions Still Pending, Roberts Court Targets Even More Civil Rights Laws


Despite the hype and anticipation, the Roberts Court didn’t deliver any of its marquee decisions for the term on Monday. Instead, the court ruled on state attempts to regulate federal election law, the right to remain silent, and agreed to consider next term a challenge to laws designed to eliminate racial discrimination in housing. And with big decisions on employment discrimination and adoption still looming, in addition to the cases everyone is watching, including challenges to the Voting Rights Act, affirmative action in university admissions, and of course same-sex marriage, it is going to be a busy end of the month.

The biggest news from court Monday didn’t come in the form of a legal opinion, but instead the announcement that next term the Roberts Court will decide whether people who file housing discrimination lawsuits must show they were the victims of intentional discrimination. In the case, the city of Mount Holly, New Jersey, is fighting a U.S. Fair Housing Act lawsuit filed by residents over the demolition of a predominately minority neighborhood. The case will test a legal theory known as “disparate impact” analysis that allows claims of discrimination to proceed even if the victim does not have evidence of intentional discrimination. Instead, if a person can show that the action or decision at issue had the effect of discriminating against a protected class or had a “disparate impact” on that protected class then they have shown unlawful discrimination. The theory evolved to address the more insidious and “hidden” forms of discrimination based on cultural bias and stereotyping, and the Obama administration has used disparate impact analysis in predatory lending lawsuits against banks. The specific issue the Court will consider is whether the Fair Housing Act recognizes disparate impact claims. So far eleven courts of appeals have ruled on the issue, and each one has said the statute does allow for disparate-impact claims.

A decision that strikes down disparate-impact analysis would have wide-reaching impact. Depending on how broad an anti-equality ruling the court issues, even the Equal Credit Opportunity Act, which bars discrimination in all types of lending and contains language similar to the Fair Housing Act and the Consumer Financial Protection Bureau, could be effectively gutted.

The news that the Roberts Court will review the disparate impact analysis under civil rights laws sets an ominous tone to the coming session, and one that even a decision in which Justice Antonin Scalia strikes an Arizona law requiring people supply proof-of-citizenship before registering to vote cannot undo. Normally the words “Justice Scalia” and “upholding voting rights” don’t go together, but when a case is essentially a question of state law blatantly contradicting federal law on a question of federal concern, in this case the regulation of federal elections, even Justice Scalia can do the reasonable thing. Scott Lemieux at the American Prospect has this great take on the decision and explanation of the law at issue in the case. Arizona’s Proposition 200, passed in 2004, was a high water mark in anti-immigrant, anti-voting rights legislation. The law requires Arizona voters in federal elections to produce evidence of citizenship, something federal law does not. The question before the Roberts Court was whether Prop 200 conflicts with the Motor Voter Act, the 1993 law that creates a uniform process for federal vote registration by mail.

The key language in the federal law requires states to “accept and use” the federal form for voter registration, and by a 7-2 majority the Supreme Court ruled that Arizona’s additional burdens of proof-of-citizenship were preempted by the federal law. But before we celebrate this as a major victory for voting rights, like many important Supreme Court decisions, the devil is in the details. While the opinion does seem to embrace a broad federal power to regulate elections, something that could be useful in future pro-voting rights legislation designed to address state-level voter ID laws for example, it also embraces the power of states to regulate elections at the local level and suggest ways those states can request those regulations, such as a proof-of-citizenship, be adopted or accepted by the federal government.

But those looking for any hints on how the Court will decide the Shelby County challenge to the Voting Rights Act in this decision should look elsewhere. While the opinion strikes the citizenship requirement, at oral arguments the conservative majority made it clear they didn’t have a problem with such a requirement in theory. Rather, Arizona had a poorly drafted law that left them no choice but to strike it, which means the decision is more about statutory construction than upholding or defending fundamental civil rights. On that point, there’s still plenty of room for worry, especially in light of the decision to review the Mount Holly fair housing case.

If a pattern is emerging from this last term, it is that a majority of justices on the Court have bought into the idea that this country is post-racial and that the civil rights battles of the 1960s and ’70s are little more than celluloid memories deserving of historical, but not legal, deference. If the Warren Court relied on broad-based sociological evidence of the impact of racial and gender discrimination in supporting school desegregation and the aims of racial equality, the Roberts Court has so far rejected that framework in favor of an embrace of “individual liberty” that had in a different era been invoked to defend against desegregation and federal enforcement of civil rights statutes. We will see this more in the coming term as the Court likely considers challenges to Roe v. Wade, government-sponsored prayer, and an expansion of religious rights under the guise of objecting to insurance coverage for birth control. But it’s clear that on matters of equality, the Court’s young conservatives have taken up where Edwin Meese and white Christian radical evangelicals left off.

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