Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/59

Rh , dissenting that, in the amendments' absence, disparate-impact claims did fall within the FHA's coverage?

The Court rejected the argument in O'Gilvie. "The short answer," the Court wrote, is that Congress might have simply wanted to "clarify the matter in respect to nonphysical injuries" while otherwise "leav[ing] the law where it found it." Ibid. Although other aspects of O’Gilvie triggered a dissent, see id., at 94–101 (opinion of ), no one quarreled with this self-evident piece of the Court's analysis. Nor was the O'Gilvie Court troubled that Congress' amendment regarding nonphysical injuries turned out to have been unnecessary because punitive damages for any injuries were not excluded all along.

The Court saw the flaw in the argument in O'Gilvie, and the same argument is no better here. It is true that O'Gilvie involved a dry question of tax law while this case involves a controversial civil rights issue. But how we read statutes should not turn on such distinctions.

In sum, as the principal respondent’s attorney candidly admitted, the 1988 amendments did not create disparate-impact liability. See Tr. of Oral Arg. 36 ("[D]id the things that [Congress] actually did in 1988 expand the coverage of the Act? MR. DANIEL: No, Justice").

The principal respondent and the Solicitor General—but not the Court—have one final argument regarding the text of the FHA. They maintain that even if the FHA does not unequivocally authorize disparate-impact suits, it is at least ambiguous enough to permit HUD to adopt that interpretation. Even if the FHA were ambiguous, however, we do not defer “when there is reason to suspect that the agency's interpretation ‘does not reflect the agency's fair and considered judgment on the matter in question.'" Christopher v. SmithKline Beecham Corp., 567 U. S. ___, ___ (2012) (slip op., at 10).