Supreme Court Justice Clarence Thomas is on stage at the Duquesne University School of Law in Pittsburgh, April 9, 2013.
Sidney Davis/AP

Clarence Thomas’ unfortunate choice of evidence

Civil-rights proponents scored an unexpected victory at the Supreme Court yesterday, when the justices, in a 5-4 ruling, shielded the Fair Housing Act. For more details, check out our report from yesterday, but the key detail is that the high court found that those facing housing discrimination can challenge laws and policies, even if they’re not intended to be racially discriminatory.
 
What matters is the effect, not the stated objective, of a policy.
 
The New Republic’s Rebecca Leber flagged an unfortunate argument from one of the four dissenting justices.
[Yesterday’s ruling] upheld the “disparate impact” standard, which allows complainants to show a policy led to unequal results, no matter the original intention.
 
Conservative Justice Clarence Thomas dissented from the decision…. He argued that “disparate-impact doctrine defies not only the statutory text, but reality itself.” To make his case, Thomas pointed out that minorities sometimes do quite well.
To prove his point, the far-right justice pointed to – in all seriousness – professional basketball players.
 
From page 9 of the dissent:
[I]n our own country, for roughly a quarter-century now, over 70 percent of National Basketball Association players have been black…. To presume that these and all other measurable disparities are products of racial discrimination is to ignore the complexities of human existence. […]
 
[I]f that “racial balancing” is achieved through disparate-impact claims limited to only some groups – if, for instance, white basketball players cannot bring disparate-impact suits – then we as a Court have constructed a scheme that parcels out legal privileges to individuals on the basis of skin color.
ThinkProgress’ Judd Legum noted in response, “It’s telling that the NBA is the only example that Justice Thomas provided. NBA players, of course, can generally afford to buy housing wherever they would like and don’t need to worry about exclusionary housing policies.  In the most of the rest of the economy, however, African Americans still face systematic discrimination.”
 

Clarence Thomas, Discrimination and Supreme Court

Clarence Thomas' unfortunate choice of evidence