Justices in the Supreme Court Get Interrupted 5 times as each tried to speak
A Supreme Court argument Wednesday about housing discrimination started with a disruption and included a surprise.
The disruption came shortly after the justices took their seats on the bench at 10 a.m., when a woman rose in the back of the courtroom and yelled, “Overturn Citizens United.” She was hustled from the room. It was the fifth anniversary of the Citizens United ruling, which allowed unlimited political spending by corporations and unions.
Chief Justice John G. Roberts Jr. seemed to take the protest in stride. “Our second order of business this morning ...” he started to say, but he was interrupted as a second protester rose, followed, one by one, by five more.
“One person, one vote,” one said.
“We are the 99 percent,” said another.
A group called 99Rise, which says it works to protect democracy, took creditor the protest.
When all of the protesters had been removed, Chief Justice Roberts said, “We will now continue with our tradition of having open court in the Supreme Court building.”
Wednesday’s surprise came soon after the argument started, when Justice Antonin Scalia seemed to align himself with positions taken by civil rights groups and the Obama administration.
In agreeing to hear the case, on the scope of the Fair Housing Act of 1968, the court seemed to signal that it was poised to take away what civil rights groups say is an important tool to fight housing discrimination.
Without Justice Scalia’s vote, though, that outcome would be in doubt.
The question for the justices was whether plaintiffs suing under the housing law must prove intentional discrimination or merely that the challenged practice has produced a “disparate impact.”
The first kind of proof can be hard to come by, as agencies and businesses seldom announce that they are engaging in purposeful discrimination. But “disparate impact” can be proven using statistics.
The case was the third to present the issue. The earlier two cases were withdrawn just before they were to be argued, because of efforts by civil rights groups and the Obama administration, which were fearful of a loss in the Supreme Court.
The latest case, Texas Department of Housing and Community Affairs v. Inclusive Communities Project, No. 13-1371, was brought by a Texas group favoring integrated housing. The group helps its clients, who are mostly lower-income black families, find housing in the Dallas suburbs, which are mostly white.
The families use housing vouchers, but not all landlords accept them. Landlords receiving federal low-income tax credits, however, are required to accept the vouchers.
The fair housing group argued that state officials had violated the Fair Housing Act by giving a disproportionate share of the tax credits to landlords in minority neighborhoods. The trial judge ruled that the group had failed to show intentional discrimination but had proved that the way the credits were allocated had had a disparate impact on minority families.
The crucial moment in the argument came when Justice Scalia said that the 1988 amendments to the law indicated that Congress had intended to include disparate impact claims.
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“When we look at a provision of law,” he said, “we look at the entire provision of law, including later amendments. We try to make sense of the law as a whole.”
“Why doesn’t that kill your case?” he asked Scott A. Keller, Texas’ solicitor general, who was arguing for a narrow interpretation of the law.
Justice Scalia’s position, however reluctantly arrived at, could align him with the court’s four-member liberal wing, all of whom voiced support for a broad interpretation of the law.
“There was a grand goal that Congress had in mind” when it enacted the law, Justice Ruth Bader Ginsburg said. “It meant to undo generations of rank discrimination.”
Mr. Keller said the words of the law plainly excluded disparate impact claims.
But Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan wondered aloud how that could be in light of decisions from 10 federal appeals courts recognizing such claims.
“The law has been against you,” Justice Breyer said. “There’s been disparate impact for 40 years. Now, let me be fair. Maybe it’s only 35. And it’s universally against you. And as far as I can tell, the world hasn’t come to an end.”
When Solicitor General Donald B. Verrilli Jr. rose to argue in support of the plaintiffs, he immediately turned to the argument that had seemed attractive to Justice Scalia.
Chief Justice Roberts and Justice Samuel A. Alito Jr. indicated discomfort with the disparate impact theory. Justice Anthony M. Kennedy said little and, as usual, Justice Clarence Thomas said nothing.
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