To many people’s surprise, the Supreme Court this morning didn’t gut the Fair Housing Act in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project. Many had feared the far-right conservatives would rule that a practice that has an unjustified discriminatory impact could no longer be judged to violate the FHA unless a discriminatory purpose could be proved. Such an interpretation would have gone against congressional intent to create a robust legal tool to bring fair housing to everyone in the nation, all 11 circuit courts that have considered the question, and the interpretation of the law by the Department of Housing and Urban Development.
Despite the absence of a circuit split, and despite the fact that Congress had amended the FHA after those judicial decisions with the clear assumption that such “disparate impact” cases would be generated, the Roberts Court had taken identical cases in 2011 and 2013, but the parties settled before the Court could rule. But at least four justices – the minimum required for the Court to agree to hear a case – clearly wanted to address this issue.
And now we can be pretty sure who they were: today’s four dissenters (the Chief Justice, and Justices Scalia, Thomas, and Alito).
Fortunately, they did not prevail. Writing for the majority, Justice Kennedy highlighted the vital role played by the Fair Housing Act, both at the time of its passage in 1968 and today, in eliminating “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification.”
Much progress remains to be made in our Nation’s continuing struggle against racial isolation. … The FHA must play an important part in avoiding the [1968] Kerner Commission’s grim prophecy that “[o]ur Nation is moving toward two societies, one black, one white—separate and unequal.” Kerner Commission Report 1. The Court acknowledges the Fair Housing Act’s continuing role in moving the Nation toward a more integrated society.
For nearly 50 years, the Fair Housing Act has been a critical tool for eliminating discrimination and expanding opportunity to all. After today, it will remain so.
So much was at stake in this case, and this morning’s 5-4 ruling could easily have gone the other way had one Justice voted differently. That is much too close for comfort. Indeed, this second anniversary of the 5-4 Shelby County decision gutting the heart of the Voting Rights Act reminds us that those who value equality and civil rights are too often on the losing side of these 5-4 cases.