John Roberts Votes With Liberals In Race-Tinged Cases

REUTERS/Joshua Roberts

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Kevin Daley Supreme Court correspondent
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Chief Justice John Roberts sided with the Supreme Court’s liberal bloc in two racially-tinged cases this term, breaking with his conservative colleagues in favor of housing-rights activists and a black death row inmate.

Though the alignment in each case may simply reflect his preference for consensus-driven outcomes, the development is notable for a jurist who has robustly endorsed the theory of the “colorblind Constitution.”

In the first case, Bank of America v. Miami, Roberts sided with his liberal colleagues to expand liability under the Federal Housing Act to big banks for discriminatory lending practices. The 5-3 ruling was written by Justice Stephen Breyer.

Miami first brought a suit against Bank of America and Wells Fargo in 2013, claiming predatory lending protocols had diminished their property tax revenue and forced them to expend more money on basic services. The city alleged “the Banks intentionally targeted predatory practices at African-American and Latino neighborhoods and residents,” leading to a spike in foreclosures in minority-majority areas. Consequently, they argued, these practices “impaired the City’s effort to assure racial integration, diminished the City’s property-tax revenue, and increased demand for police, fire, and other municipal services.”

Though the ruling was a partial victory for Miami, the Court also established that cities must demonstrate a lender’s conduct is the direct and proximate cause of the alleged injuries in order to prevail, a much higher standard as compared to lower court rulings on this topic.

“[P]roximate cause under the FHA requires ‘some direct relation between the injury asserted and the injurious conduct alleged,'” the ruling says.

This remedy was probably the cost of the chief’s vote, and also avoided a 4-4 deadlock on the issue. Still, Roberts’ vote in this case has invited a bevy of litigation concerning racially-tinged mortgaging practices, to the delight of left-wing activists and organizers.

The chief tacked leftward again in a case concerning ineffective assistance of counsel, where race played a decisive and unlawful role in the sentencing of a capital defendant.

Roberts authored a 6-2 decision that said the defendant, Duane Buck, was entitled to a new sentencing hearing because his race guided his sentencing.

Buck was convicted of the 1995 murders of his girlfriend, Debra Gardner, and Kenneth Butler, whom he believed Gardner was having an affair with.

At trial, Buck’s own lawyer, Jerry Guerinot, a capital defense attorney perhaps unworthy of the name, elicited testimony from a psychologist named Walter Quijano, who told jurors that Buck was statistically more likely to commit crimes again because he was black. Potential for future violence is a key element of a death penalty sentence.

Despite complicated procedural issues underlying the case, the Court concluded that Buck had demonstrated ineffective assistance of counsel, as his own lawyer had offended the bedrock constitutional principle that race should play no role in criminal sentencing. The extraordinary nature of this case, they said, warranted a new hearing.

“Our law punishes people for what they do, not who they are,” Roberts wrote. “Dispensing punishment on the basis of an immutable characteristic flatly contravenes this guiding principle.”

The decision was hardly a civil rights blockbuster, but the case shows the chief is willing to bludgeon certain procedural obstacles to save death row inmates who were the victims of racial prejudice.

These two cases probably do not evince a major shift in his thinking about race. In his first decade on the Court, after all, Roberts has expressed skepticism about the constitutionality of affirmative action, and authored the opinion invalidating key portions of the Voting Rights Act. Still, this term shows the chief may not be the assiduously color-blind jurist he sometimes presents as.

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