by Deepak Gupta
We've blogged before about Mount Holly--the Supreme Court case about the future of disparate impact in housing and lending discrimination. (My firm represents current and former Members of Congress in the case). All along, it's seemed possible that Mount Holly would settle before the December oral arguments.
This morning, that's looking even more likely: Bloomberg reports that the Mount Holly town council will meet tonight to consider, and possibly vote, on a proposed settlement that will end the case and deprive the Supreme Court -- for the second time in two years -- of the opportunity to decide the fate of disparate impact. (Relatedly, Adam Serwer of MSNBC has an-depth piece today that summarizes the relevant history and includes interviews of photographs of Mount Holly Gardens residents and their homes.)
A settlement will shift attention to a previously little-known case before the U.S. District Court for the District of Columbia. Two insurance trade groups are challenging HUD's new disparate-impact rule. They claim not only that the rule is contrary to the FHA but that it is reverse-preempted under the McCarran-Ferguson Act because (as applied to insurance companies) it impermissibly regulates the "business of insurance," a province of state regulation. If the court adopts the far narrower McCarran-Ferguson reverse-preemption theory, the case could cease to be a vehicle for a broader challenge to disparate impact.