Justice Thomas: Racial disparities don’t always hurt black people. Look at the NBA! – Updated by German Lopez on June 25, 2015, 11:20 a.m. ET

The Supreme Court on Thursday saved a key component of the Fair Housing Act of 1968, which protects against housing discrimination based on race, color, religion, sex, or national origin. But not every justice was happy with the decision.

The Supreme Court on Thursday saved a key component of the Fair Housing Act of 1968, which protects against housing discrimination based on race, color, religion, sex, or national origin. But not every justice was happy with the decision.

Take, for example, Justice Clarence Thomas’s dissent, in which he argued that disparate racial impact is not a good way to measure racism. He pointed out the National Basketball Association (NBA) is mostly black yet it’s not considered racist, suggesting that not all racial disparities are considered unfair and unlawful:

Racial imbalances do not always disfavor minorities.… And in our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black.

But cherry-picking one sports league misses the broader point of laws like the Fair Housing Act: they’re supposed to protect from systemic issues — and there’s little question that African Americans face huge disparities on a systemic level. Black Americans have lower wages even after attaining higher education, they’re less likely to get calls back for job applications, they’re mired by people’s subconscious racial biases, they’re more likelyto be shot and killed by police, and, yes, they still face residential segregation. When looking at the aggregate of these socioeconomic problems, it’s not hard to see why something like the Fair Housing Act might be needed to protect black people from widespread discrimination.


Affordable Care Act Faces Supreme Court Again – Published on Feb 22, 2015

The Supreme Court has agreed to hear a case Monday concerning the Affordable Care Act. The case challenges the government subsidies that help millions of low- and middle-income people afford their health insurance premiums. (Feb. 23)

State Officials Trying To Gut Obamacare Get Caught Making False Claims To The Supreme Court by Ian Millhiser Posted on January 29, 2015 at 3:36 pm


Oklahoma Attorney General Scott Pruitt (R) CREDIT: AP Photo/Sue Ogrocki

The Republican attorneys general of six states, Oklahoma, Alabama, Georgia, Nebraska, South Carolina and West Virginia, all signed a brief asking the Supreme Court to gut the Affordable Care Act. Yet one of the central claims in this brief — a claim that cuts to the heart of whether the Supreme Court should shred much of Obamacare or leave it intact — is at odds with a pile of evidence to the contrary. This evidence includes explicitly contradictory statements from the Republican governors of several states, including three of the states represented by these six attorneys general. And the six attorneys general were unable to muster any contrary evidence that supports their central claim.

This weakness in their case is unlikely to be unnoticed by the justices, however, as a brief filed Wednesday by a much larger group of state officials rounds up much of the considerable evidence undercutting the six Republican attorneys general’s claim.

To explain, the Affordable Care Act explicitly says that states should have “flexibility” to decide whether they want to operate health exchanges where their residents can buy health insurance, or whether the federal government should operate an exchange for them. Nevertheless, a lawsuit called King v. Burwell alleges that the residents of states who chose the second option lose access to tax credits intended to help them pay for insurance. If this lawsuit prevails, 13 million people, many of them children, could become uninsured.

To prevail, however, the plaintiffs in King must do more than simply show that they have discovered the best way to read Obamacare’s text. Under the Supreme Court’s decision in Pennhurst State School and Hospital v. Halderman, a state cannot be bound by an alleged condition tucked into a federal grant program “if a State is unaware of the conditions or is unable to ascertain what is expected of it.” Rather, when Congress says that it will only pay out money if a state takes a particular action, the Supreme Court insists “that Congress speak with a clear voice.” Thus, if there is uncertainty about how to read the law, that uncertainty must be resolved against the plaintiffs’ reading and in favor of the view that the law does not make tax credits conditional upon anything.

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Who gets to live where?: The battle over affordable housing – by Lawrence Lanahan January 18, 2015 5:00AM ET

The Supreme Court is to hear a case involving the low-income housing tax credit as state and local opposition simmers

Lauren Wilusz and her son, Tommy, outside their home in Severna Park, Maryland. Wilusz’ property is near a proposed affordable housing development.Lawrence Lanahan

SEVERNA PARK, M.D. — Lauren Wilusz leans down to help her 22-month-old son, Tommy, out of his coat and snow-spattered boots.

“Dat!” he says, pointing to the tall Christmas tree in the den.

“Christmas tree!” Wilusz responds.

Lauren and her husband, Joe, allowed themselves the tree as a treat. “First Christmas in the new house,” she says. “It’s the biggest tree I’ve ever had in my life.”

Last January, after several years of strict budgeting and hard work — Lauren in university administration, Joe as an aerospace engineer — the couple bought a home in Severna Park. In this suburban neighborhood of single-family homes in Anne Arundel County, the Wiluszes have 2,000 square feet with a community playground and pond right outside their back door. Lauren recently quit her job to stay home with Tommy. Their second child is due in March.

But before the Wiluszes were in the house a year, neighbors told them about plans for an apartment complex a mile away on Ritchie Highway, a busy, four-lane stretch connecting Baltimore and Annapolis. Enterprise Homes, an affordable-housing developer, planned 84 units on five acres, with reduced rents for low-income earners.

Nearby residents opposing the development dominated two public meetings this fall, complaining about potential effects on traffic, school crowding, crime, infrastructure and home values, according to local newspaper coverage. On Dec. 1, County Council member Derek Fink submitted a bill that would stop the project. A public hearing and council vote was scheduled for Jan. 5. Wilusz felt the development would change the feel of the neighborhood she had worked so hard to afford. She made plans to attend.

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Online speech case heads to high court – By Julian Hattem – 11/29/14 12:16 PM EST

The Supreme Court is preparing to weigh in on a landmark free speech case that raises crucial questions about the First Amendment in the age of the Internet.

Greg Nash

The high court next week will sit down to decide whether or not police need to prove that people posting threats online actually intend to carry them out.

Free speech groups warned ahead of Monday morning’s arguments that a ruling in favor of the government “runs the risk of punishing protected First Amendment expression simply because it is crudely or zealously expressed.”

“As more and more speech moves onto the Internet, the constitutional protections afforded to online speech will increasingly determine the actual scope of First Amendment freedoms enjoyed by our society,” the American Civil Liberties Union, the Center for Democracy and Technology and other organizations warned in a friend-of-the-court brief.

The court needs to determine that intention matters, they added, “to ensure that protected online speech is neither punished nor chilled.”

The case centers on Anthony Elonis, who posted a number of violent, expletive-laden Facebook messages after he and his wife, Tara, separated.

In one, he asked if her court protection order was “thick enough to stop a bullet.” In another, he expressed regret for not smothering her with a pillow, dropping her off in a creek and making it “look like a rape and murder.”

After the split, Elonis was fired from his job at an Allentown, Pa., amusement park over a post that some of his coworkers took to be a threat against them.

He was sentenced to nearly four years in federal prison for the threats. But Elonis says that the rants are essentially harmless and were intended to be raps in the style of Eminem or the Odd Future rap collective.

One post urging his sister-in-law to dress up his children as “matricide” on Halloween, for example, was accompanied by an emoticon of a face sticking its tongue out, his lawyers noted, “which he understood to be an indication a post is meant in jest.”

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Supreme Court to hear Obamacare case over subsidies; could redefine the law – By Tom Howell Jr. – The Washington Times – Friday, November 7, 2014

The Supreme Court will wade into the fight over Obamacare once again, this time deciding whether subsidies tied to the overhaul should be restricted to certain states under a strict reading of the law.

FILE - This April 22, 2104 file photo shows videojournalists setting up outside the Supreme Court in Washington.  The court heard arguments today in the case of John Yates, a fishing boat captain who claims he was wrongly convicted of destroying evidence, namely, the fish, that were under the legal minimum catch size in the Gulf of Mexico. (AP Photo/J. David Ake, File)

FILE – This April 22, 2104 file photo shows videojournalists setting up outside the Supreme Court in Washington. The court heard arguments today in the case of John Yates, a fishing boat captain who claims he was wrongly convicted of destroying evidence, namely, the fish, that were under the legal minimum catch size in the Gulf of Mexico. (AP Photo/J. David Ake, File)


Justices announced Friday they would take up King v. Burwell, a case from the U.S. Court of Appeals for the Fourth Circuit.

The King lawsuit is one of several that says the Obama administrationstretched the meaning of the Affordable Care Act by allowing every health exchange in the nation to dole out premium tax credits to qualified Americans.

At issue is a phrase in the law that says the subsidies are reserved for people who used an exchange “established by the state,” which challengers took to mean the 15 exchange set up by 14 states and the District of Columbia.

“The Supreme Court has the opportunity to reaffirm the principle that the law is what Congress enacts, not what the administration or others wish Congresshad enacted with the benefit of hindsight,” Jonathan Adler, one of the key architects of the legal challenge, said Friday.

The stakes could not be higher for President Obama’s signature health overhaul, just two years after the justices upheld Obamacare and its mandates as constitutional.

If justices do not agree with the Obama administration’s position that every state should enjoy the subsidies, millions of Americans who shopped on Obamacare’s federally run marketplace may no longer be able to afford their premiums.

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Justice Ruth Bader Ginsburg’s critically important 5 a.m. wake-up call on voting rights. By Richard L. Hasen OCT. 19 2014 1:05 PM

Justice Ruth Bader Ginsburg in 2010. Photo by Kevork Djansezian/Getty Images

On the surface, Supreme Court justices seem to have it pretty easy: They decide only around 70 cases per year with a written opinion, meaning each of the nine justices on average gets assigned to write fewer than nine majority opinions per year. They do not sit for regular argument in July, August, or September; and some justices use part of those summer months to moonlight as guest law professors in exotic locations.

But every so often court watchers are reminded that these justices are working very hard behind the scenes by reading briefs, exchanging memos, and debating outcomes. Case in point: The justices issued an order and a dissent in a Texas voting rights case at 5 a.m. Saturday morning. Supreme Court reporters stood by all nightfor the ruling. The holdup apparently was Justice Ruth Bader Ginsburg’s six-page dissent, joined by Justices Elena Kagan and Sonia Sotomayor.

The Supreme Court allowed Texas to use its voter ID law in the upcoming election, even though a federal court decided a few weeks ago that Texas’ law violated both the Constitution and the Voting Rights Act, and that Texas engaged in intentional racial discrimination in voting. The trial court had barred Texas from using its law this election, but the United States Court of Appeals for the 5th Circuit reversed that decision last week, and the law’s challengers went to the Supreme Court, where, as expected, the court sided with Texas.

The Supreme Court’s order was consistent with some of its other recent orders indicating that lower courts should not change the rules of running an election shortly before voting begins. I have dubbed this rule the “Purcell Principle,” for a 2006 Supreme Court case so concluding.

The court had to decide the emergency request very quickly—early voting begins in Texas on Monday morning—but Justice Ginsburg did not need to write her extensive dissent. The week before, when Justices Samuel Alito, Antonin Scalia, and Clarence Thomas dissented from a Supreme Court order putting Wisconsin’s voter ID law on hold, their entire dissent was only a few sentences. It was a dissent which disturbingly treated the right to vote as less important than deference to the Court of Appeals judgment, kind of an Anti-Purcell Principle.

Sometimes justices disagree with emergency court orders such as these and do not even bother to write a formal dissent. And recently, as Slate’s Dahlia Lithwick has noted, the majority has not been explaining its various orders in cases from voting rights, to abortion, to same sex marriage, at all.

So why did Justice Ginsburg keep the court and court-watchers up all night for a relatively lengthy dissent from an order issued with no majority opinion? There is no way to know from the outside, but my guess is that she wanted to make an important statement about how the Supreme Court should handle these voting cases going forward and to publicly flag where she believes the court is going wrong. Like a rare oral dissent from the bench after a written opinion, this middle-of-the-night dissent calls attention to what Justice Ginsburg likely sees as a grave injustice.