Conservative Meme: Did All Nine Justices Disagree With Sotomayor?
This is already making the rounds. Conservatives are alleging that, in today's ruling, all nine Supreme Court justices have disputed the reasoning of the Second Circuit Court of Appeals--and therefore of Sonia Sotomayor herself--in the Ricci case. See here and here.
But where did they come up with such a claim? It turns out they're citing the 10th footnote in Justice Ruth Bader Ginsburg's dissenting opinion, which reads "The lower courts focused on respondents' "intent" rather than on whether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party."
Ergo, Justices Ginsburg, Breyer, Stevens, and Souter all think Sotomayor is unfit to serve on the Supreme Court. Or something.
Josh
Matt
Eric
Brian
The right has totally misread this footnote. In fact, the decision is actually even narrower than 5-4 might be suggest (if that's possible!)
I gather from Ginsburg's fn.10 that the majority did not actually care about whether New Haven rejected the test as flawed and decides never to use it again, or what test was applied in affirming New Haven's rejection of the test. (If they cared about that, they would -- or should -- have remanded to the Court of Appeal with instructions to use the correct test -- good cause rather than New Haven's intent.) The majority is simply saying, at least in this instance, that if you administered the test, you're stuck with the results of that particular administration.
June 29, 2009 1:27 PM | Reply | Permalink
Here's what Ginsburg is saying: The majority noted that the lower court was focused on New Haven's intent rather than good cause. Normally, if application of the wrong test was key to the reversal, this would require that the matter be remanded with instructions to apply the correct test. But, since the majority has decided not to do that, Ginsburg then sets out to explain why New Haven should therefore be considered the prevailing party.
That's all she's saying. She is not saying, as the right is now insisting, that Ginsburg and her fellow dissenters agree that summary judgment should not have been granted, and that decision affirmed, by the lower courts. She's simply explaining why, since the matter wasn't remanded for application of a different test, New Haven's decision to reject the test (but not these particular results) was left standing and they should therefore be the prevailing party.
June 29, 2009 1:35 PM | Reply | Permalink
"Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings."
Hmmm...does this mean the conservative justices were playing politics?
June 29, 2009 1:46 PM | Reply | Permalink
All Ginsburg is saying is that, if the majority was deciding that the Court of Appeal had applied the wrong standard (intent rather than good cause), the matter would be remanded with instructions to apply the correct standard. But the matter wasn't remanded, so their quarrel must not be with the standard applied by the Court of Appeal. Put another way, the majority isn't deciding that New Haven was wrong to reject the firefighter test on the basis they rejected it on. They were just wrong to reject the results of the test once it was administered. On this basis, Ginsburg is arguing that New Haven is the prevailing party.
Hers is the dissent, of course, but it may serve to highlight the narrowness of the majority opinion.
June 29, 2009 2:05 PM | Reply | Permalink
Brian: You are missing links "here and here" in the first para.
June 29, 2009 2:43 PM | Reply | Permalink