More judicial activism from the Supreme Court
The time-honored practice of the Supreme Court has been to take cases for review when there is a significant disagreement among the Circuit Courts of Appeals about how to apply a legal principle. Not anymore evidently, at least when it comes to civil rights. The Supreme Court has decided to review a case under Title VIII, also known as the Fair Housing Act, despite the absence of a Circuit split. Specifically, in a housing discrimination case against a New Jersey town, the Supreme Court has reached out to decide whether a violation of Title VIII can be established under a disparate impact theory of liability.
As has been previously discussed here, the Supreme Court now seems intent on eviscerating the long-standing disparate impact doctrine. That doctrine recognizes discriminatory intent can be inferred when the application of a supposedly neutral policy or practice has an extreme negative effect on a class of people protected by law. That the Supreme Court is going out of its way reportedly to nullify the disparate impact doctrine under Title VIII speaks volumes about the regard for civil rights statutes more broadly. In this context, it is important to recall that Congress enacted Title VIII one week after the assassination of the Rev. Dr. Martin Luther King and did so pursuant to the Thirteenth Amendment to the Constitution – the provision that abolished slavery – because housing discrimination perpetuates segregation of communities and related social and economic harms.
Although the outlook for civil rights advancement through the law appears negative at the moment, especially given the Supreme Court’s decision concerning the Voting Rights Act last term, there is reason to hope that the parties to the pending Title VIII case will settle the claims before the Supreme Court decides the matter. One also hopes that the commitment to the rule of law improves when it comes to civil rights enforcement going forward.
