ACS Supreme Court Review | Bank of America v. Miami: An Important Progressive Victory Due to a Surprising Fifth Vote

Though Chief Justice Roberts has consistently sided with big business over those who are trying to use the courts to vindicate federal rights, Bank of America remains an important decision in its own right and an important reminder that progressives should hesitate before counting out the Chief Justice’s vote, even in the most unlikely of cases.

Summary

It was a banner year at the Supreme Court for the U.S. Chamber of Commerce, which had “one of its highest success rates ever,” winning 80% of the merits cases in which it filed amicus briefs. As my colleague Brian Frazelle put it, “[t]hose wins allowed the Chamber to consolidate and expand upon earlier landmark victories, quash attempts to carve out exceptions to recent pro-business rulings, and secure important new precedents making it harder for workers, consumers, and others to hold corporations accountable.”

But the Chamber had an important loss, too, amidst all the victories. In Bank of America v. City of Miami, a case about whether Miami could sue Bank of America and Wells Fargo for allegedly engaging in a practice of predatory lending that lasted over a decade, the Court rejected the banks’ argument that Miami could not sue to enforce the Fair Housing Act’s protections because it was not an “aggrieved person” within the meaning of that law. The Court’s decision was exactly right on that point. Consistent with the broad access to the federal courts that our nation’s Framers enshrined in Article III of the Constitution, Congress has long relied on private parties to enforce federal laws, particularly civil rights laws. And Congress continued that tradition in the FHA, as its text and legislative history make clear.

The Court’s decision in Bank of America Corp. v. City of Miami is a big deal not only for Miami, but also for the millions of Americans whose lives were shattered by the 2008 financial crisis. But while the case was definitely a loss for those who were trying to stop this lawsuit in its tracks, it wasn’t a total win for Miami either. The Supreme Court concluded that the lower court had applied the wrong standard in determining whether the banks’ lending practices were the “proximate cause” of the City’s injuries, and thus remanded the case back to that court to reconsider that issue under the proper legal standard. Thus, whether Miami is ultimately able to hold these banks accountable for their alleged violations of the Fair Housing Act remains to be seen.

As we wait to see how the rest of this case unfolds, we will also have to wait to see how much it tells us about what we can expect from the Supreme Court going forward. In this 5-3 decision, Chief Justice John Roberts was Miami’s lone vote from a conservative Justice, a result that surely surprised many (including me) when the Court’s decision was handed down. As I’ve written previously, Chief Justice Roberts, while very conservative, is not invariably so. But his consistent votes to limit access to the courts during his first decade as Chief Justice made this an exceptionally surprising vote. What accounts for it? Perhaps Roberts was simply persuaded that the Court’s prior precedents, and Congress’s affirmation of those precedents, compelled this result. But perhaps the Chief Justice, who appears to care deeply about the institutional legitimacy of the Court, was also moved, at least in part, by the desire to avoid the 4-4 split decision that would have otherwise resulted.

Whatever the cause of the Chief Justice’s vote in this case, there’s little reason to think that his decision in Bank of America is a harbinger of a broader change in his votes in access-to-courts cases. After all, he has consistently sided with big business over those who are trying to use the courts to vindicate federal rights. But even so, Bank of America remains an important decision in its own right and an important reminder that progressives should hesitate before counting out Chief Justice Roberts’s vote, even in the most unlikely of cases.

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