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.
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 a discriminatory 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.
Nearly half-a-century after the Fair Housing Act became law, housing discrimination remains widespread. A study conducted on behalf of the Department of Housing and Urban Development determined that “black and Asian homeseekers are shown or told about 15 to 19 percent fewer homes than whites with similar credit qualifications and housing interests.” Similarly, during the subprime lending boom, black borrowers with good credit scores “were 3.5 times as likely as whites with good credit scores to receive higher-interest-rate loans, and Latinos were 3.1 times as likely to receive such loans.” If the Supreme Court eliminates disparate impact claims, as it is likely to do, much of this discrimination will become impossible to redress in court, as proving that a realtor or lender purposely acted with racist intent is very difficult in most cases.
A memo that the young Roberts worked on in 1982 offers a window into the conservative view of disparate impact suits. Though this memo concerned the specific issue that faced the Reagan Administration at the time — whether voting rights plaintiffs must prove racist intent in order to prevail — it speaks dismissively of disparate impact suits generally, even using the poisonous trigger word “quota.” “As with the equal employment cases where an effects or results test is used,” the memo claims that the legislation Reagan ultimately signed would cause voting rights suits to “turn solely on a statistical analysis — i.e., has the election met the quota for minority representation.”
Justice Department documents, moreover, reveal that Roberts was heavily involved in the battle to kill disparate impact legislation in the voting rights context. At one point, Roberts even drafted “fallback” legislation that could be submitted as an alternative to the voting rights bill that eventually passed Congress. That language, according to Roberts, sought to “explicate in §2 [of the Voting Rights Act] what we have been saying is true of the state of the law.” In other words, it attempted to change the wording of the law without actually changing the meaning of the law, at least as conservatives within the Reagan Administration understood it.
Thirty-three years later, Roberts’s views on race closely mirror the conservative positions within the Reagan Administration in 1982. Roberts is famously skeptical of race conscious laws, at one point concluding an opinion with the rhetorical flourish “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” During the oral argument in Inclusive Communities Project, moreover, he indicated that he views laws banning disparate impact suits as a kind of race conscious law. Roberts asked whether there is any way “to avoid a disparate impact consequence without taking race into account in carrying out the governmental activity.” Echoing the Reagan era memo’s claim that disparate impact suits ultimately lead to quotas, Roberts added that “[i]t seems to me that if the objection is that there aren’t a sufficient number of minorities in a particular project, you have to look at the race until you get whatever you regard as the right target.”
At that same oral argument, conservative Justice Antonin Scalia asked several unexpectedly skeptical questions of the side opposing disparate impact suits, offering a ray of hope to civil rights advocates that, perhaps, Roberts may not be able to assemble the five votes he needs to kill disparate impact claims in the housing context. There are several reasons, however, why it would not be wise to bet on Scalia rescuing civil rights in this case.
One reason is that, while Scalia has, on rare occasion, broken with his fellow conservatives and joined the Court’s liberals, he also has a history of giving liberals hope during an oral argument only to dash those hopes later. Just last term, for example, in a case seeking to defund public sector unions called Harris v. Quinn, Scalia peppered the anti-union side with skeptical questions only to join Justice Samuel Alito’s opinion ruling against the unions.
More importantly, Scalia suggested in a 2009 concurring opinion that disparate impact lawsuits are unconstitutional in the employment context because he believes that they require employers to “discriminate on the basis of race.” This is, to say the least, a controversial view of disparate impact law. But it ultimately does not matter whether Scalia is right or not about how disparate impact suits function — if he believes that they are unconstitutional, then he’s very unlikely to lend his vote to preserve disparate impact in the housing context.
The smart money, in other words, suggests that the younger Roberts would be very pleased with the opinion that is likely to emerge from the more mature Roberts’s Court.
This post has been updated to provide additional clarity regarding Roberts’ views.