Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/52

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Alito, J., dissenting

decisions. See ante, at 13–14; Brief for United States as Amicus Curiae 23–24. This argument is deeply flawed.

Not the greatest of its defects is its assessment of what Congress must have known about the judiciary’s interpretation of the FHA. The Court writes that by 1988, "all nine Courts of Appeals to have addressed the question had concluded the Fair Housing Act encompassed disparate-impact claims." Ante, at 13 (emphasis added). See also Brief for United States as Amicus Curiae 12. But this Court had not addressed that question. While we always give respectful consideration to interpretations of statutes that garner wide acceptance in other courts, this Court has "no warrant to ignore clear statutory language on the ground that other courts have done so," even if they have "'consistently'" done so for "'30 years.'" Milner v. Department of Navy, 562 U. S. 562, 575–576 (2011). See also, e.g., CSX Transp., Inc. v. McBride, 564 U. S. ___, ___ (2011) (Roberts, C. J., dissenting) (slip op., at 11) (explaining that this Court does not interpret statutes by asking for "a show of hands" (citing Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U. S. 598 (2001); McNally v. United States, 483 U. S. 350 (1987))).

In any event, there is no need to ponder whether it would have been reasonable for the 1988 Congress, without considering the clear meaning of §§804(a) and 805(a), to assume that the decisions of the lower courts effectively settled the matter. While the Court highlights the decisions of the Courts of Appeals, it fails to mention something that is of at least equal importance: The official view of the United States in 1988.

Shortly before the 1988 amendments were adopted, the United States formally argued in this Court that the FHA prohibits only intentional discrimination. See Brief for United States as Amicus Curiae in Huntington v. Huntington Branch, NAACP, O. T. 1988, No. 87–1961, p. 15