Worse than Obamacare: SCOTUS upholds 'disparate impact' as discrimination

As bad as today’s Supreme Court decision in King v. Burwell is, the Supreme Court sowed even worse mischief today.  After all, Obamacare can be repealed.   Today, the court definitively upheld the principle that even absent discriminatory intent, a housing discrimination lawsuit can proceed on the basis of a “disparate impact” of any criterion.  Jess Bravin and Robbie Whelan explain in the Wall Street Journal:

The Supreme Court Thursday ruled that housing discrimination lawsuits can proceed without proof of intentional bias against minorities, endorsing a civil-rights era litigation tool that had faced tough scrutiny by the high court.

The surprise decision, by a 5-4 vote, held that disparate impact on minorities is sufficient to get a housing-discrimination claim into court. The state of Texas, whose housing department was fighting a fair-housing claim, contended that the Fair Housing Act of 1968 required that plaintiffs prove intentional discrimination, something much more difficult to show.

Justice Anthony Kennedy, writing for the court, traced the history of racial discrimination and housing discrimination that pervaded American cities through most of the 20th century, and the difficulty of reversing entrenched racial isolation.

“The court acknowledges the Fair Housing Act’s continuing role in moving the nation toward a more integrated society,” Justice Kennedy wrote, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

As with Obamacare, the Court is engaging in what I propose we call “outcome-based adjudication.”  The majority decides what policy it likes, and then rationalizes it, however clumsily.

The Supreme Court will unleash a wave of lawsuits that will wreak havoc.  Zoning requiring large lots, for instance, can be called discriminatory.  And, for all those who remember the housing crash of 2008:

In a friend of the court brief, the Mortgage Bankers Association and other industry groups argue that “the risk of disparate-impact lawsuits…pressures the residential mortgage lending industry to arrive at particular outcomes and end numbers” such as making loans to borrowers based on racial factors rather than on typical underwriting criteria such as a borrower’s salary or credit score.

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