In last week’s oral argument on whether disparate-impact claims are cognizable under the Fair Housing Act, Justice Scalia posed the question whether amendments that Congress made in 1988 meant that it was accepting lower-court interpretations of the original 1968 law that recognized disparate-impact claims. Scalia invoked the whole-text canon, the principle that a text should be read as a whole, including later amendments.
Of course, as Scalia emphasizes in Reading Law: The Interpretation of Legal Texts (the treatise he co-authored with Bryan A. Garner):
No canon of interpretation is absolute. Each may be overcome by the strength of differing principles that point in other directions.
For at least two reasons, I doubt that Scalia will conclude that the whole-text canon has much force in this context:
1. It would be one thing for Congress to have embraced the lower-court interpretations by affirmatively setting forth the proposition that disparate-impact claims are cognizable. It is much weaker to infer that Congress must have been acquiescing in those interpretations.
Indeed, Scalia himself, in his concurring opinion in Crandon v. United States (1990), declines to read subsequent legislation as “congressional approval and ratification” of a “prior interpretation” and suggests that “the only reasonable meaning” of the original statute should “trump[] an implication.” There are, to be sure, plenty of grounds on which the particular statutory question at issue in Crandon may be distinguished. My narrow point here is that Scalia’s opinion in Crandon indicates that the whole-text canon may not have particular force for him on the Fair Housing Act question.
2. Under the constitutional-doubt canon, a “statute should be interpreted in a way that avoids placing its constitutionality in doubt.” As Scalia emphasized in oral argument, “Racial disparity is not racial discrimination.” Reading the Fair Housing Act to authorize disparate-impact claims would, for Scalia, raise substantial doubts as to its constitutionality. (Of course, it’s also possible that Scalia might read the Fair Housing Act to authorize disparate-impact claims and conclude that, so read, it is to that extent unconstitutional.)