The summer of Justice Clarence Thomas making sports references in opinions from which his fellow justices run screaming continued yesterday with his dissent in a Texas case regarding housing discrimination. In this case, Thomas brought up the NBA and the fact that it is a predominantly black league. If you’re wondering how the hell that has anything to do with housing discrimination, well, let’s go on a journey.

We’ll start with what Justice Thomas actually said about the NBA:

Racial imbalances do not always disfavor minorities. At various times in history, “racial or ethnic minorities . . . have owned or directed more than half of whole industries in particular nations.” Sowell 8. These minorities “have included the Chinese in Malaysia, the Lebanese in West Africa, Greeks in the Ottoman Empire, Britons in Argentina, Belgians in Russia, Jews in Poland, and Spaniards in Chile—among many others.” Ibid. (footnotes omitted). “In the seventeenth century Ottoman Empire,” this phenomenon was seen in the palace itself, where the “medical staff consisted of 41 Jews and 21 Muslims.” Ibid. And in 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.

This is ... specious reasoning, to be polite, but on its face it’s hard to make sense of what Thomas is even trying to get at. For that, we need context.

Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.

The case at hand deals with whether or not people can raise challenges to housing practices that harm minorities even if there is no proof of intentional discrimination. In legalese, the split between these two ideas is a “discriminatory intent” versus “disparate impact.” In essence, it’s the difference between an applicant test specifically designed to exclude black people (and being able to prove that this was the intent in a courtroom) and one that demonstrably disincentivizes black people from applying, or negatively affects a “color-blind” selection of the population that just happens to comprise mainly minorities. It’s been well and recently documented how this dynamic applies to housing discrimination.


In Texas, the disparate-impact claim was brought by a fair-housing group that had found, as described in the Supreme Court opinion, that the Texas Department of Housing and Community Affairs “has caused continued segregated housing patterns by its disproportionate allocation of the tax credits, granting too many credits for housing in predominantly black inner-city areas and too few in predominantly white suburban neighborhoods.” (Emphasis added.) Texas fought back, arguing for a suit to be brought there must be intentional discrimination.

The liberal wing and swing voter Justice Anthony Kennedy sided with the housing group and used their opinion to lay out case law, 1988 amendments made by Congress to the Fair Housing Act (adding exemptions that seem to address disparate-impact claims while rejecting an amendment to eliminate the claims in certain zoning cases), and examples from American history that support their views. The conservative wing wrote its own opinion, authored by Justice Samuel Alito, disagreeing on the basis that they don’t believe the specific text of housing law allows for disparate-impact claims. None of this is terribly shocking, and the chosen armaments of each side are standard. It’s also worth remembering that this ruling only means that the discrimination lawsuit can go forward—it’s still possible for the fair-housing group to lose in court.

Which leads to the NFL Draft ...

But Thomas (as well as the main dissenting opinion, written by Alito) actually had a legal point to wrangle: namely, the specific interpretation of the law that led to the court’s majority opinion involves many legal contortions to arrive exactly where it needs to. This is often true—and it might even be here—and this is where Thomas spends the first half of his dissent, more or less competently explaining this. (The obvious context being that because the Supreme Court wields broad and final power, and because the interpretation of law needs to apply to the physical universe, justices will often overlook legal flaws to get the “right” answer on sensitive issues. This is nothing new.)


The conservative bloc’s dissent decides one way to illustrate its points is to give examples of places where there are racial disparity that aren’t the result of discrimination. The NFL is raised as an example.

Of the 32 college players selected by National Football League (NFL) teams in the first round of the 2015 draft, it appears that the overwhelming majority were members of racial minorities. ... Teams presumably chose the players they think are most likely to help them win games. Would anyone say the NFL teams made draft slots unavailable to white players “because of” their race?

Of course not—though applying lessons from the NFL draft, a morally bankrupt perversion of an already heavily restricted market for players, does not seem to have much to do with artificially constructed tax guidelines and their effect on a population. The conservative justices then move on to the rest of their points, which rely heavily on very strict readings of the Fair Housing Act and what phrases like “because of” mean. But even after all this, Thomas felt he had to keep writing. He had further to go.

... and back to the NBA.

The thing to remember here is that Thomas signed on to the minority dissent and wrote his own opinion that registers on the Geiger counter. None of the other justices joined him, and it might be because he decided to argue not just that he disagreed with this case but that the legal foundation of disparate-impact claims is garbage. (His words: “disparate-impact jurisprudence was erroneous from its inception.”) The other justices used a sports league as an example of a workplace where, despite racial disparity, discrimination wouldn’t be alleged. Thomas takes it a step further. He says they are proof that racial disparity is just how things are and everyone needs to calm down about this stuff.

As far as Thomas is concerned, if you can’t prove you were intentionally discriminated against, then all is well. He goes on to argue that people need to chill out about trying to do away with racial disparities because “the absence of racial disparities in multi-ethnic societies has been the exception, not the rule.” He quotes one source that says minorities “have owned or directed more than half of whole industries in particular nations” and gives a few examples: the Jews in Poland, the British in Argentina, and the NBA.

(As a refresher, some of these “racial imbalances” did not work out particular well, and others—which he argues reflect real world differences in races—are built on surface-level inference that blacks make better NBA players than whites.)

Thomas wraps up this section by pointing out that white basketball players can’t bring disparate claims. Which is true, insofar as white basketball players are not subjected to testing that is premised on anything other than vocational aptitude. But that is how you get from concerns about putting too much of the affordable housing in black neighborhoods to concerns about why white players can’t sue the NBA for discrimination. Let’s all set ourselves on fire, or, barring that, lobby for Clarence Thomas to decide he needs to spend more time with his family.

Image via Associated Press

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