Kennedy concluded that “we must remain wary of policies that reduce homeowners to nothing more than their race.” And the implication is that anything outside the “heartland” of disparate-impact liability—that is, “zoning laws and other housing restrictions that function unfairly to exclude minorities from certain neighborhoods without any sufficient justification”—would be dangerous territory.
These particular plaintiffs, the opinion made clear, almost certainly must lose on remand. Disparate impact lives on. But the lower courts have plenty of ammunition in this opinion to use against any novel use of the FHA.
If the result seems “liberal,” it is only in contrast to the dissenting opinions, which are truly radical—contemptuous both of judicial precedent and the history of executive enforcement of civil-rights laws over the past half-century. Justice Clarence Thomas, writing for himself, urged the court to begin overturning all those precedents—especially the case that originated the theory of disparate-impact liability, Griggs v. Duke Power, which used it to invalidate a neutral-seeming employment policy that had the effect of trapping black workers in laborers’ positions. The Civil Rights Act, Thomas said, didn’t justify the decision; the Court had relied on a deceitful bunch of bureaucrats at the Equal Employment Opportunity Commission, who schemed to enlarge the scope of the law—and their own power—by hoodwinking the Court. It is a striking argument, especially when made by the former head of the EEOC—one who, during his tenure, had tried to reorient the Commission away from the role it had played in the ‘60s and ‘70s.
Thomas concluded with a strange set of musings about racial disparities in general. Disparity is the way of the world. He quoted conservative economist Thomas Sowell to the effect that some minority groups end up running the economies of entire nations: “the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile—among many others.” Besides, he said, “over 70 percent” of players in the NBA are black.
The principal dissent, by Justice Samuel Alito writing for Chief Justice John Roberts and Justice Antonin Scalia, is, a bit less eccentric but equally radical. The precedents are not worthy of respect, Alito argued. Congress may have re-enacted the Act in 1988, but its changes didn’t mean everyone supported DI; the Reagan administration had said the Act didn’t allow DI claims. HUD, which issued regulations supporting DI, was actually trying to manipulate the Court rather than expressing its “’fair and considered judgment.’”
Like Thomas, Alito pointed out that disparities are everywhere—not only in the National Football League but in the Office of the Solicitor General, which mostly sends young lawyers to argue in front of the Court.
With one more vote, these two screeds would have created a gaping hole in the fabric of civil-rights law, with malign effect far beyond housing. That Kennedy rejected that course is an occasion for relief. But if you think that the great danger facing the United States is too much separation rather than too much equality, Kennedy’s opinion is no cause for celebration. It is a slow and measured step to the right, rather than a radical one. But its direction is clear.