The issue in this case is unusual for Supreme Court review. Usually, the Court takes cases on which the federal appellate courts have disagreed. In this case, every federal appellate court to rule on the issue has agreed that the Fair Housing Act includes disparate impact claims. Justice Breyer seizes on that history in this exchange, and notes that these claims have been going on for 35 years and “all the horribles that are painted don’t seem to have happened or at least we have survived them.” Why then, Justice Breyer posed, should the Supreme Court change course now?

Marbury v. Madison, which Justice Breyer mentions in passing, is a landmark Supreme Court case from 1803 which established the Court’s ability to review the constitutionality of laws.