After passage of the Civil Rights Act in 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968, our court system needed a definition of what constituted discrimination. With the success of the Civil Rights Movement, polite society rejected open statements of white supremacy. It was no longer acceptable to do things like call someone the n-word (thus, the invention of "dog whistles"). But racism/sexism were still rampant in our culture. So how do you go about proving discrimination?
That question was eventually answered by something that came to be known as "disparate impact," which "occurs when a seemingly neutral policy or action causes a disproportionate and unjustified negative harm to a group, regardless of intent." That shift was monumental. No longer did someone need to prove that a defendant intended to discriminate. That occurred if the outcome of an action/policy disproportionately affected a protected class.
A friend of mine once gave me a perfect analogy for the importance of disparate impact: If you drop an anvil on my foot, your claim that you didn't intend to hurt me doesn't make the pain any less severe.
Conservatives like Chief Justice John Roberts have wanted to get rid of the disparate impact standard for decades. A little over a year ago, Donald Trump signed an executive order attempting to eliminate the federal government's use of disparate impact. Jeff Bezos's editorial board at the Washington Post published an opinion piece last December praising former Attorney General Pam Bondi for rescinding the use of disparate impact - calling the standard "woke."
The latest blow to disparate impact came from the recent Supreme Court decision in Louisiana v. Callais, which basically gutted the Voting Rights Act. Here's what Edward Foley wrote about the attempt to eliminate a "results" test and return to an "intent" test:
Callais purports to interpret VRA’s Section 2, but it destroys the central meaning of the section, converting it into the exact opposite of what Congress meant for it to do. The one thing that is unambiguous about Section 2 is that the 1982 amendment to the section’s text creates a “results” test for determining whether there is liability under the section, replacing the “intent” test that the Supreme Court had previously adopted for Section 2 claims. As the text states, no “standard, practice, or procedure shall be imposed … which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race.” Yet Callais defiantly converts Section 2 back to an intent inquiry rather than a results analysis.
To demonstrate how dangerous this is, let's look at some of the Jim Crow voter suppression laws that these six conservatives on the Supreme Court would validate with this ruling. One could make a claim that in order to vote (or register to vote), citizens must pass literary tests, pay a poll tax, and/or not be a former prisoner. Voter rolls could be purged with no ability to re-register until after the election.
It is possible to make a case for all of those measures without suggesting that they are meant to discriminate. As a matter of fact, those arguments are already being made by some MAGA influencers. Applying them to everyone removes the appearance that they are intended to discriminate. But the result has always been to limit the voting power of black and poor citizens.
When people suggest that these decisions by the six conservative members of the Supreme Court take us back to the Jim Crow era, it is NOT an exaggeration. That's exactly where we're headed.
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