Alito, J., dissenting
to "infer that these Congresses, by silence, ha[d] acquiesced in the judicial interpretation of §10(b)." Ibid. The Court dismissed this argument in words that apply almost verbatim here:
"'It does not follow that Congress' failure to overturn a statutory precedent is reason for this Court to adhere to it. It is "impossible to assert with any degree of assurance that congressional failure to act represents" affirmative congressional approval of the courts' statutory interpretation. Congress may legislate, moreover, only through the passage of a bill which is approved by both Houses and signed by the President. See U. S. Const., Art. I, §7, cl. 2. Congressional inaction cannot amend a duly enacted statute.' Patterson v. McLean Credit Union, 491 U. S. 164, 175, n. 1 (1989) (quoting Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 672 (1987) (Scalia, J., dissenting))." Ibid. (alterations omitted).
We made the same point again in Sandoval, 532 U. S. 275. There it was argued that amendments to Title VI of the Civil Rights Act of 1964 implicitly ratified lower court decisions upholding a private right of action. We rejected that argument out of hand. See id., at 292–293.
Without explanation, the Court ignores these cases.
The Court contends that the 1988 amendments provide "convincing confirmation of Congress' understanding that disparate-impact liability exists under the FHA" because the three safe-harbor provisions included in those amendments "would be superfluous if Congress had assumed that disparate-impact liability did not exist under the FHA." Ante, at 14, 15. As just explained, however, what matters is what Congress did, not what it might have "assumed." And although the Court characterizes