The Constitutionalization of Disparate Impact—Court-Centered and Popular Pathways: A Comment on Owen Fiss’s Brennan Lecture

Abstract

Responding to Owen Fiss’s call for the Court to recognize the constitutional status of the Griggs principle, I question court-centered accounts of constitutional change and examine the constitutional development of disparate impact law inside and outside of the courts. To illustrate the important role that democratic actors have played in shaping the development of disparate impact law, I sample conflict over disparate impact standards across all three branches of the federal government since the 1970s, from the Burger Court to the Roberts Court, in Congress, and in the Reagan, Obama, and Trump administrations. Examining disparate impact’s history reminds us that on numerous occasions, Congress has proven more willing than the Court to protect minority rights. Further, this account shows that constitutionalization of disparate impact could take forms that Fiss does not anticipate, given conservative opposition to the use of disparate impact standards to combat race discrimination (as distinct from discrimination on the basis of religion or disability). Fiss argues that a Court in the coming decades could interpret the Equal Protection Clause to require judges to review the racially disparate impact of state action. The history I consider suggests that constitutionalization might instead take the form of a Court interpreting the Equal Protection Clause to prohibit or limit federal laws mandating such review — a prospect that grows with the shifting composition of the Court and growing hostility to disparate impact in the Trump administration. This Comment makes the case for a dialogic understanding of our constitutional law primarily on grounds of descriptive accuracy. Situating the Court’s work in dialogue with democratic actors supplies a better understanding of how our law has evolved and is likely to evolve in the coming decades. But I close by offering a brief, normative account that suggests why conflict strengthens our constitutional law. When properly constrained, constitutional conflict can give democratic authority and direction to constitutional law.