And Also: There is obviously a lot of commentary, including from the usual places I go, about these two cases. One discussion spoke about how disparate impact deals with "unconscious prejudices." Another on the ACA decision highlights a portion that suggests a signal that the justices are getting tired of challenges. Some call out the inconsistency, shall we say, of Scalia. Notable as well is a portion in the copyrights case dissent by Alito on the difficulties of congressional action. Seems easier now, huh?
This is the sentiment of many, and not just on the left, regarding the two opinions today involving health exchanges and disparate impact in respect to a fair housing ordinance. Scott Lemieux has blogged a lot, believing the "Moops" argument as to exchanges had a good chance of winning. I'm sure he is glad his pessimism was wrong -- Roberts wrote a 6-3 opinion upholding the lower court that accepted the government's argument. Kennedy, as expected, wrote the FHA opinion though this time 5-4. This was probably considered a nice birthday present to Justice Sotomayor.
The health exchanges ruling on the whole was sane. It made some potshots at the apparently special problems (including "secrecy") as to how the legislation was made (a citation to an old law review article and cartoon reminds one of the infamous Pelosi comment). This is b.s. though perhaps the old citation reminds it isn't so novel after all. (edited upon reading the linked discussion)* It says the specific text is "ambiguous" (arguable) and the challengers have a "strong" case on that but that taking the law as a whole (particularly its purpose; might be a "Breyer" friendly opinion -- see his books), the government's interpretation is correct. In fact, so-called Chevron deference is not applied (at least it says this), so a later administration cannot even decide to use Scalia's "absurd" reading. Scalia accuses the majority of more creation by interpretation, suggesting "Scotuscare," which might be better than Obamacare -- SCOTUS did make the Medicare expansion voluntary, more power than Obama himself has.
This is big since intent is a lot harder to prove; it is easier to start with impact, even if you have to show evidence the policy in question caused that impact. Scalia in oral argument raised an example -- the fact the NFL has a lot of black people does not in itself mean the NFL is "discriminating." But, the fact that there is a lot of a certain type of people by color in certain sports is fairly telling. It is likely, though it can be rebutted, that race had something to do with it. History -- as cited by the majority here in the context of the creation of the housing law (the setting and purpose behind ACA also was cited in the other statutory case) helps show this. Disparate impact therefore is a useful tool in policy-making.
Kennedy rarely references dissenting opinions (he did so in his concurring opinion in the contraceptive mandate case and those in the know should have seen it as notable) but here speaks of the "well-stated principal dissenting opinion" by Alito (Thomas concurred as well separately). This might be because Kennedy is sympathetic with the overall concerns with use of race when invidious intent is clearly not shown, including in the area of affirmative action and school integration. But, Kennedy repeatedly leaves open -- if as here with caveats -- some room for maneuver. Some ability to take race into consideration when appropriate.
Kennedy in particular refers to the example that Alito leads with -- "No one wants to live in a rat’s nest." This refers to a lower court opinion in a case that was settled before SCOTUS was able to decide the matter. In some fashion, it's not advisable to trust Alito's framing, the lower court held that enforcement against code violations that fell the most on certain housing was discriminatory under the law. Kennedy noted it is unclear, especially given the majority's language regarding proper governmental interests acceptable even if there is some disparate impact such as dealing with "rat nest," how the test in the opinion would be applied there. Net, disparate impact is likely to benefit residents as an additional tool. Anyway, precedent also made this an easy call.
A careful opinion that made things somewhat harder for people who feared a full loss and a sane ACA opinion with a few potshots. "Whew." Five opinions left. Expect the SSM on Monday.
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* The idea there was not a normal sense of "care and deliberation" in legislation that had much more attention given to it than usual is annoying. There was some difficulties regarding the lack of expected editing, but the context there should be recalled -- Republicans simply would not let that be done, even if no substantive changes were made. Even there, I reckon legislation had some problems in the past because of late developments. The size of this legislation made it an issue here but only so much.
This is the sentiment of many, and not just on the left, regarding the two opinions today involving health exchanges and disparate impact in respect to a fair housing ordinance. Scott Lemieux has blogged a lot, believing the "Moops" argument as to exchanges had a good chance of winning. I'm sure he is glad his pessimism was wrong -- Roberts wrote a 6-3 opinion upholding the lower court that accepted the government's argument. Kennedy, as expected, wrote the FHA opinion though this time 5-4. This was probably considered a nice birthday present to Justice Sotomayor.
The health exchanges ruling on the whole was sane. It made some potshots at the apparently special problems (including "secrecy") as to how the legislation was made (a citation to an old law review article and cartoon reminds one of the infamous Pelosi comment). This is b.s. though perhaps the old citation reminds it isn't so novel after all. (edited upon reading the linked discussion)* It says the specific text is "ambiguous" (arguable) and the challengers have a "strong" case on that but that taking the law as a whole (particularly its purpose; might be a "Breyer" friendly opinion -- see his books), the government's interpretation is correct. In fact, so-called Chevron deference is not applied (at least it says this), so a later administration cannot even decide to use Scalia's "absurd" reading. Scalia accuses the majority of more creation by interpretation, suggesting "Scotuscare," which might be better than Obamacare -- SCOTUS did make the Medicare expansion voluntary, more power than Obama himself has.
The ruling is a defeat for banks, insurance companies and other business groups that claimed such lawsuits are not explicitly allowed under the Fair Housing Act, the landmark 1968 law that sought to eliminate segregation that has long existed in residential housing.Given seniority, Roberts announced the case last (Scalia announced his dissent aloud, as usual, without audio or transcript; Obama had a good statement about the case and ACA itself later on as well); the first case announced was the housing case. This was a significant case that went beyond the specific claim. The opinion suggests the claim itself (regarding placement of certain housing) was weak. Those who wanted the case to be heard, at least some of them at least, were aiming for bigger game -- to take away as a matter of statutory interpretation (though the dissents seemed to be as concerned with alleged negative policy implications) -- to deny disparate impact is covered by the law in question.
This is big since intent is a lot harder to prove; it is easier to start with impact, even if you have to show evidence the policy in question caused that impact. Scalia in oral argument raised an example -- the fact the NFL has a lot of black people does not in itself mean the NFL is "discriminating." But, the fact that there is a lot of a certain type of people by color in certain sports is fairly telling. It is likely, though it can be rebutted, that race had something to do with it. History -- as cited by the majority here in the context of the creation of the housing law (the setting and purpose behind ACA also was cited in the other statutory case) helps show this. Disparate impact therefore is a useful tool in policy-making.
Kennedy rarely references dissenting opinions (he did so in his concurring opinion in the contraceptive mandate case and those in the know should have seen it as notable) but here speaks of the "well-stated principal dissenting opinion" by Alito (Thomas concurred as well separately). This might be because Kennedy is sympathetic with the overall concerns with use of race when invidious intent is clearly not shown, including in the area of affirmative action and school integration. But, Kennedy repeatedly leaves open -- if as here with caveats -- some room for maneuver. Some ability to take race into consideration when appropriate.
Kennedy in particular refers to the example that Alito leads with -- "No one wants to live in a rat’s nest." This refers to a lower court opinion in a case that was settled before SCOTUS was able to decide the matter. In some fashion, it's not advisable to trust Alito's framing, the lower court held that enforcement against code violations that fell the most on certain housing was discriminatory under the law. Kennedy noted it is unclear, especially given the majority's language regarding proper governmental interests acceptable even if there is some disparate impact such as dealing with "rat nest," how the test in the opinion would be applied there. Net, disparate impact is likely to benefit residents as an additional tool. Anyway, precedent also made this an easy call.
A careful opinion that made things somewhat harder for people who feared a full loss and a sane ACA opinion with a few potshots. "Whew." Five opinions left. Expect the SSM on Monday.
---
* The idea there was not a normal sense of "care and deliberation" in legislation that had much more attention given to it than usual is annoying. There was some difficulties regarding the lack of expected editing, but the context there should be recalled -- Republicans simply would not let that be done, even if no substantive changes were made. Even there, I reckon legislation had some problems in the past because of late developments. The size of this legislation made it an issue here but only so much.
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