Justice Scalia and the Fair Housing Act: A Textualist Approach Honed in Oral Argument

by | Mar 29, 2016

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About Andrea McArdle

Andrea McArdle, Professor of Law at City University of New York School of Law, teaches a variety of experiential courses, including seminars she designed in judicial rhetoric and in urban land use and community lawyering. Andrea’s published articles and essays are at the intersection of law, narrative, and rhetoric, on pedagogy, and on urban land use and community studies. She has co-edited, and is a contributor to, the anthologies Uniform Behavior: Police Localism and National Politics (Palgrave Macmillan 2006) and Zero Tolerance: Quality of Life and the New Police Brutality in New York City (NYU Press, 2001). She has also been a Senior Assistant County Attorney for Westchester County and counsel to the Mount Vernon Urban Renewal Agency. She holds a J.D. from NYU School of Law, an LL.M. from Columbia Law School, an M.A. in literature from Columbia University Graduate School of Arts & Sciences, and a Ph.D. in American Studies from the Department of Cultural and Social Analysis, NYU Graduate School of Arts & Science.


Andrea McArdle, Justice Scalia and the Fair Housing Act: A Textualist Approach Honed in Oral Argument (OxHRH Blog, 29 March 2016) <https://ohrh.law.ox.ac.uk/justice-scalia-and-the-fair-housing-act-a-textualist-approach-honed-in-oral-argument/> [Date of Access]

Justice Antonin Scalia’s output in the area of housing rights, and Fair Housing Act (FHA) law specifically, is deceptively sparse, if judged by authored opinions. Assessing his impact on these issues benefits from a broader inquiry into his voting record on FHA cases, his opinions interpreting related civil rights statutes, and his writing on textualism. These sources offer evidence of a text-bound rather than a rights-based approach that has not advanced the goal of achieving fair housing rights.

In Texas Dept. of Housing and Community Affairs v. ICP, the Court (5-4) interpreted sections of the FHA to cover disparate-impact as well as intentional discrimination. Justice Scalia joined Justice Alito’s lengthy dissent, after an active and well-publicised role in the oral argument that fueled speculation about Scalia’s vote. Long identified for his robust questioning, Scalia’s participation in the ICP argument pointed toward an interpretive approach that became audible in the analysis and rhetoric of Alito’s dissenting opinion, providing some evidence of Scalia’s influence.

The FHA was enacted in 1968 to eradicate unequal access to housing on the basis of race and other protected categories. The ICP case, which raised the issue whether disparate-impact liability was cognisable under the Act, was the Court’s third grant of certiorari to review that issue since 2011 (the other two cases settled before argument). This prompted concerns that the Court was preparing to overturn forty years of FHA precedent that had uniformly interpreted the Act to cover disparate-impact discrimination. At oral argument, Justice Scalia actively engaged with the advocates, including the U.S. Solicitor General, who participated as amicus curiae. Scalia’s questions initially suggested that his views were unsettled, or perhaps inclined toward upholding the disparate-impact theory. Early on, for example, Scalia opined that 1988 congressional amendments granting appraisers and other housing personnel “safe-harbor” immunity from liability seemed to presuppose the existence of disparate-impact liability. However, by argument’s close, his questions had shifted to reflect a less expansive view of the statute.

The points of connection between Alito’s dissenting opinion and Scalia’s remarks during the argument, as well as the dissent’s references to Scalia opinions and writings, amplify Scalia’s voice. The dissent’s early reference to intentional discrimination as the “classic” form echoed Scalia’s assertion that discrimination, but not disparity, requires “intentionally excluding people of a certain race.” Highlighting the proximity of the contested statutory terms “make [housing accommodations] unavailable” and “because of race” in section 804(a), the dissent follows Scalia’s similar observation made to ICP’s counsel.

The dissent’s reminder that the Supreme Court had never ruled on the issue of disparate-impact liability under the FHA invoked Justice Scalia’s more pointed rejoinder during argument that, under Marbury v. Madison, the Supreme Court, not lower federal courts, is the ultimate arbiter of federal questions. The dissent’s suggestion that the three safe-harbor amendments were the result of compromise seems consistent with a view that Scalia ultimately intimated: the safe-harbor amendments may have served not to ratify FHA liability but simply to protect against what some perceived to be legally erroneous rulings on the FHA.

The dissent (and the majority) cite Scalia and Bryan Garner’s Reading Law: The Interpretation of Legal Texts. The dissent uses it to refute the Government’s and the majority’s reliance on a canon of construction that would interpret the 1988 amendments as implicitly ratifying settled judicial construction of a statute. The Alito dissent also draws on Scalia’s “controlling“ concurrence in Smith v. City of Jackson, which interprets a provision of the FHA-era Age Discrimination in Employment Act to be compatible with disparate-impact liability, but which turned on language in the ADEA that was missing in the FHA.

Scalia’s voice resonates in the Alito dissent in both acknowledged and unacknowledged ways and contributes to the opinion’s analytic and rhetorical structure. In joining that opinion, Scalia settled upon a narrowly textualist approach and rejected alternate evidence from the text, purpose, and judicial construction of the statute.

In assessing legacy, his body of work in this area of law is limited, but restrictive of housing rights: he joined the dissent in an opinion holding a city’s single-family zoning definition was not subject to the FHA’s maximum-occupancy liability exemption, and concurred in a ruling rejecting equal protection and substantive due process objections to a referendum petition process to repeal authorisation for low-income housing. At a time when achieving a right to fair and secure housing has remained tenuous, what is clear is that Justice Scalia’s narrow interpretations of antidiscrimination claims under the FHA and related housing-rights theories have done little to advance their protections.

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