Big wins at the Supreme Court for Obamacare and fair housing. Is marriage equality next?

The Supreme Court has a lot of deciding to do this week, with major cases touching on issues ranging from lethal injections to Obamcare subsidies to, of course, marriage equality.

Yesterday, the Court issued two major rulings. In the first, it held in King v Burwell that one typo does not a law make, declining to invalidate subsidies issued through federally-run state health insurance exchanges under the Affordable Care Act.

Obamacare

Of course, King v Burwell was such a ridiculous case that it should never have come before the court in the first place. At least one of the plaintiffs in the case likely lacked standing to file the lawsuit in the first place, and the central question posed to the court was whether one semantically questionable sentence could override both the rest of the law’s text and its overall intent. As Larry Kramer, former dean of Stanford Law School, told POLITICO Magazine:

That this case was even in the Supreme Court is an embarrassment for the Court—and a sign of how ideological and politicized the federal bench has become. That we had to wait with bated breath to see whether a majority of the Justices would uphold this ridiculous challenge is an even bigger embarrassment and worse sign. At no other time in U.S. history would a challenge this frivolous to a law of this significance have been close, even for Justices whose politics were opposed to those of the President and Congress that enacted the law.

To that point, in his majority opinion, Chief Justice John Roberts highlighted the frivolity and absurdity of the plaintiffs’ argument by citing an opinion written by Antonin Scalia in the 2012 case that upheld the Affordable Care Act’s individual mandate. In that opinion, in an attempt to argue that the Court could not rule parts of the law unconstitutional — it was either all or nothing — Scalia (correctly) pointed out that without the subsidies, the state exchanges would not function. As Roberts wrote, with that in mind the idea that the administration would establish state exchanges through the federal government but prohibit the federal government from subsidizing those exchanges is implausible at best. It’s really not that complicated: As Roberts wrote, “Congress passed the Affordable Care Act to improve health insurance markets, not destroy them.”

At the end of the day, the ruling means that over 6.4 million Americans who now receive their health insurance with the help of subsidies through federally-run state exchanges will get to keep their coverage. That’s great news, but it shouldn’t have come down to a 6-3 ruling.

Fair Housing

While King v Burwell received a lot of attention yesterday, liberals saw another, less-expected, victory in Texas Department of Housing and Community Affairs v Inclusive Communities Project, Inc. In the case, the court held in a 5-4 ruling that the use of the disparate impact test is acceptable in fair housing cases.

The Supreme Court, via Wikimedia Commons

The Supreme Court, via Wikimedia Commons

What does that mean? It means that you don’t need to show explicit discriminatory intent to show that discrimination is taking place and should be corrected for. Especially on a large scale, explicit intent to discriminate is far more difficult to show than statistical trends.

But those trends are real, and carry huge consequences: The Department of Justice recently won a $335 million settlement with Bank of America after a disparate impact test found that a company the bank had bought was pushing black and latino borrowers into subprime loans, while white applicants with similar credit profiles were offered prime mortgages. There was no official policy at the company that dictated racial discrimination in lending, but discrimination occurred nonetheless. Had the Supreme Court ruled that the disparate impact test was unconstitutional, it would have effectively legalized informal or implicit discrimination in the housing market.

The Bank of America case is no outlier. As outlined by Vox:

Although it looks different now, housing discrimination remains a major problem. The National Fair Housing Alliance estimates that more than 3.7 million Americans each year are victims of housing discrimination. ThinkProgress points to a study by the Department of Housing and Urban Development that found black and Asian potential homebuyers were shown 15 to 19 percent fewer homes than similarly qualified whites. A Center for American Progress/La Raza roundup of the evidence on housing discrimination reports that blacks with good credit scores were 3.5 times as likely as their white counterparts to receive higher interest rate loans, and, as recently as 2009, African Americans were twice as likely to be denied a home loan.

None of those statistics establish discriminatory intent, but under the disparate impact test that doesn’t matter. One need only establish discriminatory effects in order to show discrimination.

As Rick Hasen at Electablog pointed out, this case has implications beyond housing, as the disparate impact test could be similarly applied to cases regarding voting rights when a specific policy can be used to establish a causal arrow. In other words, you couldn’t use discrepancies in turnout rates among different demographic groups to force changes to voting laws under the disparate impact test, but you could successfully sue against new laws that can be shown to produce disproportionate changes in voter participation.

So, in a not-so-hypothetical hypothetical, if one were able to show that a state’s newly-passed restrictions on provisional balloting were directly responsible for lower voter turnout, and further showed that those restrictions disproportionally affected minority voters, the disparate impact test could be used to invalidate those restrictions.

Now, the focus turns to the decisions left for the Court to hand down. We’ll have a ruling in Obergefell v Hodges either today or Monday. Get ready.


Jon Green graduated from Kenyon College with a B.A. in Political Science and high honors in Political Cognition. He worked as a field organizer for Congressman Tom Perriello in 2010 and a Regional Field Director for President Obama's re-election campaign in 2012. Jon writes on a number of topics, but pays especially close attention to elections, religion and political cognition. Follow him on Twitter at @_Jon_Green, and on Google+. .

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  • Jimmy

    It almost seems too much to hope they’ll do the right thing three times in a row. If this becomes another 6-3 ruling with John Roberts leading the way Conservative may actually implode.

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