THE BLOG
06/29/2015 05:00 pm ET Updated Jun 29, 2016

A Big Week for the Supremes

This has been a busy week for the Supreme Court, which came down with three much-anticipated decisions.

The first was the decision on same-sex marriage (Obergefell v. Hodges ). As a libertarian, I have absolutely no problem with gay couples enjoying the same legal rights as heterosexual ones. I also see no reason why they should be spared the ravages of our divorce system just because they are gay. In fact, I look forward to the day when the anti-male bias of the divorce courts in most countries is tempered by precedents coming from gay divorces, where the enemy is much harder to identify.

As someone who suffers from a quaint and decidedly unfashionable belief that words should actually mean something, I have a bit of a problem with calling it same-sex "marriage," since this word has meant, from time immemorial, something involving a man and woman. However, I can easily get over this.

What I do have a problem with, however, is how this decision is being discussed by commentators on both sides. The continuous discussions about whether this or that justice, usually referring to Roberts or Kennedy, has gone over to the liberal or conservative side. Or the invocation of opinion polls or the spirit of the times. All of these things speak to a fundamental misunderstanding of the role of the Supreme Court, which is the most disconcerting part of the reaction.

Discussion about the decision on Obamacare (King v. Burwell ) shows a similar partisan inability to distinguish between the political and the legal issues at hand. Right or left applaud or decry the decision based on whether it is a win or loss for their "side." For my part, although politically I am not thrilled by the decision, my non-lawyer mind always thought that the legal case was weak.

I have spent most of my business career surrounded by laws from multiple jurisdictions. I can tell you that nearly all of them are drafted badly. If judges started invalidating the clear intent of laws on the basis of poor drafting, then we would quickly be back to "Thou shalt not kill" and little else. Like it or not, Congress fully intended that subsidies be available to anyone buying health insurance over any state or federal exchange. To expect the Supreme Court to overrule this political decision due to the slip of a pen was always a reach.

Lastly, we have the most disappointing decision of all, as least from my perspective. This is the decision in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., which relates to the doctrine of "disparate impact," as I have discussed earlier . Here the court has ruled in favour of the doctrine as it relates to the Fair Housing Act. Although the decision could be, and hopefully will be, read as narrowly applying only to this Act, it represents yet another nose under the tent for this pernicious theory. And it is being celebrated as such by liberal commentators, including the reliably left-leaning Noah Feldman from BloomberView, who is teaching the next generation of social-engineers at Harvard Law School.

I will quote at length from his recent blog on this decision (with italics added for emphasis):

What's important about the decision isn't the rationale but the real-world effects. Housing discrimination is a significant legacy of the broader history of racial discrimination throughout the U.S., in North and South alike. Proving intentional discrimination, however, is difficult to do - especially when a faceless institution is involved....

It's entirely possible that no one in the Texas office was consciously or knowingly engaged in racial discrimination. Yet the effects on housing markets, and by extension on racial equality, could be real, regardless of intent.

When the law is interpreted to allow disparate impact claims, it permits statistically based challenges to the reality of discrimination. It draws attention away from the fantasy that behind every discriminatory act lies some identifiable racial animus.

This kind of pragmatic approach is particularly desirable in this historical moment, when police discrimination has been so much a matter of public attention. Frequently, police officers have no conscious intent to treat blacks differently from whites. That's one reason discrimination can happen even when officers are black - and even when a department is led by a black chief. Yet discriminatory effects can nevertheless be felt by blacks even if no one knowingly means to discriminate....

Discrimination is still with us even as conscious, knowing racism declines. Disparate impact remains a crucial tool for producing more equal outcomes in a more equal America.

There you have it: the liberal view of the rule of law. Legal rationale isn't important, just a "pragmatic" approach to "real world effects" in which we can have crimes without criminals. Or even crimes without crimes, so long as the damage is "felt." And all of this guided and justified by the overriding goal of "producing more equal outcomes in a more equal America," in which "disparate impact" will become indistinguishable - if it ever has been - from "disparate outcome," and where the latter standard will be applied to more and more categories of disparity. And since discrimination seems to exist in some kind of aether, outside of the realms of "conscious" or "knowing," then the likes of Feldman will only be able to pronounce its eradication when we have achieved statistic perfection.

Gay marriage and the Obamacare victory will get all the coverage, but I predict that Texas Department of Housing is the ruling that America will most come to regret.