Chief Justice Roberts Set To Gut Fair Housing Act After Failing 30 Years Ago
June 2, 2015

How does it come to pass that Chief Justice John Roberts has the opportunity to undo a law Congress passed specifically countering his efforts to undo civil rights laws while he was a lawyer in the Reagan administration?

You would think there might be a clear conflict of interest there, but apparently not. According to ThinkProgress, he's now in the perfect position to torpedo that which he failed to do back in the 80s.

In February of 1982, a young John Roberts was fresh out of his clerkship for the conservative Justice William Rehnquist, and only a few months into his new job working as an aide to Attorney General William French Smith. Less than two years earlier, the Supreme Court had read the Voting Rights Act narrowly, holding that the law did not permit many cases alleging disenfranchisement against minority voters to move forward. Roberts was now working within the Justice Department to defend his boss’s position that this narrow interpretation of the law should remain in place.

Roberts and his fellow conservatives lost this fight. That June, President Reagan signed legislation extending the Voting Rights Act and overruling the Supreme Court’s 1980 decision in Mobile v. Bolden. During the signing ceremony, Reagan acknowledged that “there are differences over how to attain the equality we seek for all our people.” Ultimately, however, the president concluded that “the differences tend to seem bigger than they are.” He chose not to veto the language opposed by many of his political appointees within the Justice Department.

If at first you don't succeed, make sure you get a Republican president to appoint you Chief Justice.

More than three decades later, a much more powerful John Roberts is a central figure in another, strikingly similar battle over the soul of American civil rights law. Mobile, the decision overturned by the 1982 law signed by President Reagan, established that Voting Rights Act plaintiffs must show that the law they are challenging was enacted with a “racially discriminatory motivation” — the mere fact that the law has the effect of disenfranchising or otherwise harming voters of color was not enough. Thanks to the legislation Reagan signed, the Voting Rights Act now permits plaintiffs to challenge any law that “results” in a particular racial group having less access to the polls.

This question of whether a civil rights plaintiff must prove discriminatory intent in order to prevail is one of the most important questions in American civil rights law. It’s also currently before Chief Justice Roberts’ Court in a housing discrimination case called Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.

Every single federal appeals court to consider the question has held that the federal Fair Housing Act permits what are known as “disparate impact” suits — suits which allow a discrimination suit to prevail if the defendant engages in a practice that has adiscriminatory effect on racial minorities, unless the practice serves some other legitimate interest. Yet the fact that federal appeals courts have all agreed that the Fair Housing Act authorizes disparate impact suits is, ironically, a bad sign for civil rights. The Supreme Court typically does not take up matters that have achieved a consensus among the lower federal courts, but this is the third time the justices have taken up this issue (the first two cases settled while they were still pending before the Court). That’s a sign that the Court is eager to make new law in this space.

Republicans do play a long game, and they're willing to make the investments for the long term payoff. That looks like it's just around the corner, thanks to the absence of any enforceable ethics rules for the United States Supreme Court.

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