Chief Justice Roberts Wants to Take Another Giant Step Back on Racial Justice

Many of us have been frustrated at the inability of our justice system to prosecute police officers who have killed unarmed black men. Even the Department of Justice has been unable to bring charges based on a violation of the victim's civil rights.

You might remember that one of Eric Holder's last statements before he stepped down as Attorney General was about the need to address the current laws that make that so difficult.

"We do need to change the law. I do think the standard is too high," Holder said Thursday. "There needs to be a change with regard to the standard of proof."

To bring a federal case, federal prosecutors must prove that a person used excessive force, willfully —meaning on purpose — with the knowledge that it was wrong.

William Yeomans, a former prosecutor in the Justice Department's Civil Rights Division, said proving intent is the biggest challenge in bringing a successful prosecution in such cases.

"It's extremely difficult to establish beyond a reasonable doubt what was in the defendant's mind when he committed the act."

Notice that the difficulty is in proving someone's "intent." That is what makes the standard of proof in these cases different from other situations where our court system has typically addressed claims of civil rights violations.

That's because early on in cases that followed passage of civil rights laws in the mid-1960's, the courts validated a standard known as disparate impact. It allowed defendants to prove a violation of civil rights based on the impact of their decisions/actions on protected classes rather than a need to prove it was the plaintiff's intent.

Going back to his work in the Justice Department in the 1980's, Chief Justice John Roberts has made attempts to do away with the standard of disparate impact. And now, with the Supreme Court's decision to hear arguments in a Texas housing case, he might finally get a chance to do that.

This question of whether a civil rights plaintiff must prove discriminatory intent in order to prevail is one of the most important questions in American civil rights law. It’s also currently before Chief Justice Roberts’ Court in a housing discrimination case called Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.

It's pretty clear that getting rid of the standard of disparate impact is Robert's goal in hearing this case. His court has attempted to do so two other times, only to have the cases settled while they were pending before the court (thanks to some excellent work by former head of DOJ's Civil Rights Division Thomas Perez).

If this case makes it through, it likely won't get as much attention as the one where Chief Justice Roberts was able to take a blow to the Voting Rights Act. But when it comes to the daily issues faced by people of color due to systemic racism, it might even be more important.