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The Disparate Impact Canon

In early January, the U.S. Supreme Court heard oral argument in Husted v. A. Philip Randolph Institute. The case presented a question of pure statutory interpretation: whether Ohio’s procedure for updating its voter registration rolls violates § 8(b)(2) of the National Voter Registration Act (NVRA). At oral argument, Justice Sonia Sotomayor raised the possibility of resolving the case according to a new, potentially revolutionary canon of statutory construction: interpreting federal laws, where reasonably possible, to avoid, minimize, or prohibit racially disparate impacts. Adopting this rule would have important ramifications across numerous fields of law, raise serious constitutional questions, and represent a tremendous victory for the critical race theory movement, which has long emphasized the law’s role in perpetuating structural racial inequality. This potential canon also implicates compelling questions—questions that arose during Justice Sotomayor’s confirmation proceedings—concerning the proper role of judges.