Constitutional Interpretation and Change

By Melissa Rothstein, deputy director of the Equal Rights Center, and Megan K. Whyte, director of the Fair Housing Project at the Washington Lawyers’ Committee for Civil Rights and Urban Affairs. This is cross-posted at The Equal Rights Center’s blog.

Fair Housing Month recently ended, and for most it was an opportunity to celebrate our country’s commitment to equal opportunity in housing for all people. Unfortunately, for some, it was instead another occasion for attacks on the crucial efforts to ensure enforcement of our country’s fair housing laws.

In one such example, Congress launched an investigation into why the City of St. Paul withdrew an appeal in the Supreme Court that had the potential to eviscerate the validity of disparate impact challenges under the Fair Housing Act (FHA), despite the rulings of eleven federal circuit courts of appeal that uniformly held that disparate impact claims are cognizable under the FHA. In another example, Republican presidential candidate Mitt Romney suggested that, if elected president, he would consider disbanding the Department of Housing and Urban Development (HUD), an agency for which his father once served as Secretary.

These actions come on the heels of a disturbing trend by federal courts of imposing additional hurdles on fair housing plaintiffs. Even in the face of efforts to make it more difficult for plaintiffs to enforce their statutory rights, the continuing role of fair housing organizations in enforcing the provisions of the FHA cannot be overstated. Private fair housing organizations and other civil rights groups investigate two out of every three fair housing complaints filed across the country – and their ability to enforce fair housing violations is critical to the promise of equal housing opportunity for all. These organizations are able to conduct investigations efficiently and effectively with little of the bureaucracy and overhead costs that may be associated with governmental agencies, and to gain the trust of disenfranchised community members who may not feel comfortable lodging a complaint with a government entity. 

Officials at HUD and DOJ – the federal agencies with authority to enforce the FHA – recognize the importance and value of private enforcement, as they lack the resources to effectively enforce the FHA on their own. As detailed in our recent American Constitution Society Issue Brief, Congress intended for private enforcement to be a key component of ensuring FHA compliance, and the 1988 FHA amendments were largely intended to amend the law’s enforcement mechanism so that, in Senator Kennedy’s words, it would no longer be “a toothless tiger.”  

By Justin Crowe, an assistant professor of political science at Williams College

Gee, for a one-time constitutional law professor, Barack Obama sure does seem to harbor a lot of hostility for judges. (And, judging [a legal pun — ha!] by Samuel Alito and Jerry Smith, they for him.) Doesn’t he? First there was the broadside at his 2011 State of the Union criticizing the Court's decision in Citizens United, prompting Alito's now-infamous “not true” moment. Next there was his claim that the Court wouldn't dare strike down the Affordable Care Act as unconstitutional, prompting Smith’s surely soon-to-be-infamous order to a DOJ lawyer for a memo outlining the Justice Department’s views on judicial review. For all his claims about “due deference to the separation of powers” and supposed belief in the importance of an independent judiciary to protect the rights of citizens and the rule of law, it appears Obama only likes the Court — only likes the judiciary more broadly — when it agrees with him. And surely that sort of “anti-judgeite” perspective is a terrible one for American constitutionalism and American democracy. Right?

Well, yes — sort of ... and no, not at all. In a sense, Obama only really values judicial power to the extent that its exercise comports with his policy preferences. But, at base, who doesn’t? Presidents always want — have always wanted — courts to bend to their will. And politicians generally always try — have always tried — to shape courts to serve their interests. So what? Does this really “politicize” the judiciary in some needless, inappropriate, and harmful way? Does it really demonstrate that judicial power — that judicial independence, that law itself — is somehow perpetually under political siege? Not even remotely.

As I attempt to show in my recent book, Building the Judiciary: Law, Courts, and the Politics of Institutional Development, any claims that judicial power — that judicial autonomy or judicial independence — has ever been, in any meaningful sense, beyond the sphere of politics are fundamentally incorrect.