The U.S. Supreme Court today delivered two defeats to conservative activists on two causes they hold dear: Overturning the Affordable Care Act and rolling back the disparate-impact theory of discrimination.
The 2-0 loss may have been all the more disconcerting for conservatives because it came at the hands of two of their own, Chief Justice John Roberts and Justice Anthony Kennedy. But both decisions were well within the mainstream of judicial interpretation of statutes and neither disrupted the status quo, meaning business, on balance, came out the winner.
In King v. Burwell, Roberts  wrote a 6-3 opinion upholding the Obama administration’s interpretation of the ACA allowing billions of dollars in tax subsidies for people who buy health insurance on federal exchanges. And inTexas Dept. of Housing v. Inclusive Communities, Kennedy joined the court’s four more liberal justices in holding disparate impact, as opposed to direct evidence of discriminatory intent, can be used to prove cases under the Fair Housing Act.
Conservatives had pushed for this showdown over disparate impact for years, watching two previous cases make it to the Supreme Court only to be mooted out by settlements engineered by the Obama administration and its liberal friends. Justice Samuel Alito, in a dissent joined by Roberts, Antonin Scalia and ClarenceThomas, criticized the majority for enshrining a method for “proving” discrimination using little more than statistical evidence to show a policy or practice has a disproportionate effect on a minority group.
The majority acknowledges the risk that disparate impact may “perpetuate race-based considerations rather than move beyond them,” Alito wrote.
But the law was already fairly clear in all federal circuits that disparate impact applies to the Fair Housing Act just as it does in Title VII employment cases, so they shouldn’t be surprised at the result, said Jeffrey Ross, a partner in the Chicago office of Seyfarth Shaw who represents large employers and does some pro bono work in housing discrimination cases.
Indeed…and you can thank the Chief Justice for that. (PAUL J. RICHARDS/AFP/Getty Images)