Chief Justice John Roberts wrote in Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Id. At 748. That would be nice. But, while insisting on “equal treatment” for whites, it turns a blind eye toward discrimination against blacks. In effect, the Roberts Court itself discriminates. Although some cases are more explicit, the problem is the pattern and the way the Roberts Court chokes off all avenues for redress.
Its hostile perspective toward minority claims was most clearly embodied by Justices Scalia and Thomas. A particularly clear example was League of United Latin American Citizens v. Perry, 548 U.S. 399 (2006), which challenged redistricting in Texas. Thomas joined Scalia’s separate opinion reaching very different conclusions depending on whether the legislature increases white or nonwhite population. Speaking of a majority Hispanic district, Scalia wrote, “In my view, when a legislature intentionally creates a majority-minority district”—that is, a district in which the majority of the population is of a “minority” race— “race is necessarily its predominant motivation and strict scrutiny is therefore triggered.” But regarding a district from which a large percentage of Hispanic voters were removed, they refused to reach that conclusion if white voters are in the majority: “Although a State will almost always be aware of racial demographics when it redistricts, it does not follow from this awareness that the State redistricted on the basis of race.” In other words, Scalia and Thomas applied very different standards to districts strengthening white representation and those strengthening nonwhite representation. You can’t make this up. For them, apparently, the Equal Protection Clause offers stronger protection to the descendants of the former slave-masters.
An earlier comment underscores the point. In Romer v. Evans, 517 U.S. 620, 627 (1996), in a Scalia dissent, they described “legal protection from the injuries caused by discrimination” as “special protection” and “favored status.” That case addressed the legal status of gays and lesbians, but the logic of their position is that most of us have to deal with innumerable forms of discrimination, from physical attractiveness to regional or class accents and dialects, so not having to deal with discrimination is a preference. Looked at from that perspective, the whole idea of equal protection and antidiscrimination law doesn’t make much sense.
White plaintiffs continue to get solicitous treatment, while black plaintiffs face a plethora of barriers. Justice Scalia put the problem succinctly in Ricci v. DeStefano, 557 U.S. 557 (2009). “[T]he Court will have to confront the question: Whether, or to what extent, are the disparateimpact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?” “Disparate impact” is the legal term for a statistical pattern in discrimination cases showing that a decision or practice has a different impact on minorities than others. Because few are foolish enough to state their discriminatory purpose, the best proof of discrimination against minorities is generally statistical. Other testimony in discrimination cases is “softer,” based on opinions about whether and why a given question or practice is fair and neutral. That kind of testimony is always offered to explain away the statistical results.
The Court, ominously, refused to decide whether the disparate impact provisions of Title VII are constitutional, but it held that “before an employer can engage in intentional discrimination . . . [to] remedy an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action.” In other words, corrective action would be racebased “intentional discrimination” and therefore illegal unless the disparate impact case is strong. In Ricci, it rejected the statistics on the basis of opinion testimony that the Court credited. So the Court held that the City’s corrective action was both unsupported and discriminatory, illustrating the difficulty minorities have trying to win a discrimination case.
The Roberts Court’s hostility to inferences from patterns and practices is also expressed in procedural rulings, preventing the plaintiff from reaching the proof stage. In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), plaintiffs sued for class relief against Wal-Mart, asserting a set of common patterns and practices throughout the Wal-Mart empire. The Court agreed that the organization of the company could count as a practice. It concluded, however, that, “[i]n a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way without some common direction.” Therefore, as Justice Ginsburg wrote in dissent, “The Court . . . disqualifies the class at thestarting gate.” By barring class litigation the Court effectively made the claim impossible to prove.
The Court used a similar approach in Ashcroft v. Iqbal, 556 U.S. 662 (2009), alleging religious discrimination in imprisonment by Attorney General Ashcroft and others. Rule 8 of the Federal Rules of Civil Procedure had previously been understood as requiring only simplified notice pleading. But the Court now required that “a complaint . . . contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” But on the pleadings, before discovery, evidence, or hearings, the Court held “discrimination is not a plausible conclusion” about Ashcroft’s motives and threw out the claim.
The Court made the same shift in antitrust law. Describing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in Ashcroft, the Court wrote, “the well-pleaded fact of parallel conduct, accepted as true, did not plausibly suggest an unlawful agreement.” Parallel conduct is the antitrust equivalent of disparate impact pattern-or-practice evidence, and the decision marked a significant change in the law. Once again the Court rejected statistical proof, the best available proof in this type of case. And it will no longer allow the inferences necessary for such suits to proceed to discovery.
The Court’s hostility toward discrimination claims by or on behalf of minority claimants has also blocked remedies. The best known case is Shelby Co. v. Holder, 133 S. Ct. 2612 (2013). It held unconstitutional a portion of the Voting Rights Act identifying the states and localities that needed to seek pre-clearance from the U.S. Attorney General before changing voting rules. It was the Attorney General’s responsibility to ensure that the changes would not turn the clock back with respect to discrimination against racial minorities. The Court agreed that “[t]he Act has proved immensely successful at redressing racial discrimination and integrating the voting process.” But it held that the coverage formula violated “the fundamental principle of equal sovereignty” of the states and found the formula unconstitutional, thus rendering pre-clearance inoperative.
One of the Court’s most powerful procedural decisions to disable discrimination claims applied the 1925 Federal Arbitration Act (FAA), 9 U.S.C. § 2. Most civil rights statutes currently in use date from 1964 or later. Normally the procedural provisions of later statutes supersede earlier ones. Nevertheless, the Court used the FAA to override federal labor and antidiscrimination law. 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (2009). It pointed out that “federal antidiscrimination rights may not be prospectively waived.” Therefore employers’ employment contracts may not ask employees to waive statutory rights with respect todisputes arising later. But the Court decided that an arbitration clause “waives only the right to seek relief” in a judicial forum and “does not forgo the substantive rights afforded by the statute.” Procedures for antidiscrimination claims were chosen deliberately because Congress understood the link to outcomes. Boilerplate arbitration clauses in employment contracts now send discrimination complaints to arbitration tribunals selected by the employers and block class actions.
The Roberts Court decided that arbitration is inconsistent with class actions: “Requiring the availability of classwide arbitration interferes with fundamental attributes of arbitration and thus creates a scheme inconsistent with the FAA.” AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). Having decided that class relief is inconsistent with the FAA, the Court concluded that states could not require its availability. So the waiver of judicial relief that the Court blessed in 14 Penn Plaza also waives class relief.
Preventing people who believe they have been discriminated against from getting together in class litigation makes disparate impact suits almost impossible. Such cases require extensive investigation and discovery that are virtually impossible for individual complainants. Individual cases are largely about whether or not the complainant was denied a work-related benefit for which he or she was qualified and for which decision the employer does not have a decent explanation. Left out of those individual cases are the strong inferences available from large patterns. Potential complainants will be left to decide whether it is safe or worthwhile to complain in a forum chosen by, and therefore indebted to, the employer, alone and without the benefit of other plaintiffs and the legal effort that only class relief justifies.
In view of the difficulties now facing plaintiffs in discrimination cases, it is also significant that government agencies must run a minefield if they attempt to deal with the issues voluntarily. Parents Involved in Community Schools v. Seattle School District No. 1, 551 U.S. 701 (2007), blocked an attempt at racial mixing that involved no ranking, superiority, or inferiority. Ricci v. DeStefano blocked a voluntary attempt to correct what looked like bias.
When the Court writes about affirmative action, it claims to drive the sword of equality to the hilt. But its hostility steams off the steel. Protections against discrimination simply register with the Roberts Court majority as “favored treatment” to be blocked at all costs.