The Supreme Court Ruling That Was Worse Than King Vs. Burwell

The King vs. Burwell ruling upholding subsidies in Obamacare’s federal exchanges, and thus preventing the collapse of the law its enemies were hoping for, is getting most of the attention today But I think another ruling portends far more scary things for our country.

I’m not sure Burwell would have ultimately changed much for Americans as a matter of practical public policy. I’m certain that Republicans, fearing political backlash from millions losing their insurance subsidies, would have leaped to fix the whole created by a different SCOTUS outcome.

But the ruling in Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc. could portend some very ugly things for our country. What the Supreme Court has upheld is the use of raw statistical trends as evidence in and of itself of housing discrimination.

[mks_pullquote align=”right” width=”300″ size=”24″ bg_color=”#000000″ txt_color=”#ffffff”]The Supreme Court has now said that activists and lawyers needn’t prove that unequal outcomes are caused by discrimination. They only need to prove that there are unequal outcomes.[/mks_pullquote]

What the 5-4 ruling means is that if there are unequal outcomes, statistically, we can conclude that discrimination is the culprit.

That’s extremely troubling, because very often there are unequal outcomes in our society which are not necessarily the result of discrimination.

For instance, in the debate over the national gender wage gap, activists tell us that the existence of the gap between pay for all full-time male workers and all full-time female workers is evidence in and of itself of discrimination. Yet the evidence tells us that men and women often choose very different career paths, and that those choices have a significant impact on earnings. Apples-to-apples comparisons of male and female pay among people with similar levels of education, experience, time-on-the-job, etc. shows that the gender wage gap almost disappears.

Yet, per the Supreme Court’s ruling today, none of that matters when we’re talking about discrimination. All that matters is the larger statistical trends.

The SCOTUS case was about housing law, but how long until this thinking (already espoused by activists) pervades other areas? Like employment or admissions law?

The Supreme Court has now said that activists and lawyers needn’t prove that unequal outcomes are caused by discrimination. They only need to prove that there are unequal outcomes.

If that’s not a dangerous precedent, I don’t know what is.