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The Court’s Contempt For Congress

Publication Date: 
December 04, 2013
Source: 
The New Yorker
Author: 
Jeff Shesol

Stanford Law Professor Pam Karlan comments on the nature of recent Supreme Court rulings for The New Yorker.

The “least dangerous” branch—as Alexander Hamilton famously and really, really wrongly called the judiciary—is a little less dangerous, at least for the time being, thanks to the five members of the mighty Mount Holly, New Jersey, Township Council. Their unanimous vote, taken shortly before Thanksgiving, settled a civil-rights case that was to be heard today in the U.S. Supreme Court. In place of this morning’s oral argument, you will hear—if you listen closely—a slow hissing of steam as it escapes from the ears of the conservative justices, who have just lost an opportunity to do to the Fair Housing Act of 1968 what they did, in the last term, to the Voting Rights Act of 1965: detach its teeth. It’s no doubt a double disappointment, because the case also provided a chance to kick around Congress—a pastime, and something of a project on the rightward reaches of the bench.

Mount Holly v. Mount Holly Gardens Citizens in Action concerned racial bias in housing policy—specifically, the township’s determination to redevelop a blighted community in such a way that the new homes would cost more than its poor, and mostly African-American and Latino, residents could afford. The case raised the question—long thought settled—of whether the Fair Housing Act bans policies that, however neutral on their face, disproportionately harm minorities. As a doctrine, this goes by the name of “disparate impact,” and its importance to a wide range of civil-rights laws, from employment to education, indicates why the Court’s conservatives seem so eager to introduce it to the business end of a gavel. (Last year a similar case, from St. Paul, was also settled on the eve of argument.)

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The same sentiment permeates Chief Justice John Roberts’ opinion, in 2012, on the Affordable Care Act. The Stanford law professor Pamela Karlan has described it as “probably the most grudging opinion ever to uphold a major piece of legislation,” and that seems about right. While holding that the A.C.A. falls within the congressional power to tax, Roberts yanked it out of the scope of the Commerce Clause, echoing right-wing ruminations about federally mandated broccoli-eating, and citing James Madison’s fear of a Congress “everywhere extending the sphere of its activity and drawing all power into its impetuous vortex.” (One hopes the Chief’s clerks confirmed that this line really is from The Federalist No. 48 and not from Disney’s 1979 sci-fi thriller “The Black Hole.”)