Supreme Court Overturns Sotomayor's Ricci Decision; Conservatives Rejoice
In a 5-4 decision--in which Anthony Kennedy was once again the swing vote--the Supreme Court has rejected a decision by Sonia Sotomayor and the Second Circuit Court of Appeals, finding that the city of New Haven's promotion policy for firefighters, amounted to discrimination against whites. The city had tossed out a promotions test on which black firefighters performed poorly, prompting a number of white firefighters to sue.
The ruling can be found here (PDF). This move could reignite the fight over Sotomayor, who Obama nominated to the Supreme Court this spring. Conservatives have repeatedly cited the case--Ricci v. Destefano--as evidence that the New York judge would favor minorities in her decisions as an Associate Justice.
Already, the RNC has released a "Research Briefing" called "Reaching on Ricci" in which they allege that Sotomayor has now had seven of her decisions go before the High Court, and the Court has agreed with her reasoning only once."
To reach that ratio, though, they cite one case--Knight v. Commissioner--in which the lower court's ruling was upheld.
Conservative groups and Sotomayor supporters alike will be weighing in throughout the day. We'll let you know what they have to say.
Josh
Matt
Eric
Brian
Conservatives will bellow that this ruling raises serious questions about the nomination of such an activist judge.
And the cable news and major networks will dutifully parrot those lines ad nauseum. Next Sunday, there will be ALL Republicans on the Sunday morning blab fest to earnestly explain why Sotomayor is not the right choice at this point in time.
Only consolation to that will be the fact that next Sunday is the day after a big holiday.
June 29, 2009 11:16 AM | Reply | Permalink
It seems quite possible, from what she's said, that she actually AGREES with this result, but that she and her colleagues, as lower court judges bound by existing case law, did not feel empowered to reach it themselves. Wouldn't it be great fun if she so testified at her hearings? I can just see the deer-in-the-headlights look on the faces of the wingnut Senators as they try to figure out where to go with THAT.
June 29, 2009 11:20 AM | Reply | Permalink
That was my reading of her position, too. She actually took the position she did because she was the OPPOSITE of a judicial activist and refused to take a position that was not yet established in the law.
IAIIP (It's Activism If It's Progressive)
June 29, 2009 11:25 AM | Reply | Permalink
David Kurtz quotes Andrew Cohen (CBS) as saying the ruling makes it harder to attack Sotomayor. She was in the majority on this issue on her panel, and on the full 2nd Circuit, and the Supremes were 5-4. Disagree if you will, but how is this "outside the mainstream"?
On the merits, the decision is really troubling and probably divisive as well. Ever since the "Griggs" case, employment practices with a "disparate impact", i.e., which appear "fair in form" but "biased in operation" are illegal. In Griggs, the company imposed a HS diploma requirement on janitors, ruling out virtually all black applicants who grew up in a segregated society. There are thousands of similar cases since then, including the Alabama prison guards case, in which the state imposed height requirements (as opposed to strength requirements) on prison guards, ruling out virtually all of the female applicants.
Since Griggs, anyone giving an employment test has typically tried to get the test "validated" to ensure it is race neutral. New Haven didn't do that, and the successful black candidates on the test were "zero". If the city were sued, what would their defense be?
This is an activist decision which simply scraps decades of legal precedent in the hope of a utopian outcome.
June 29, 2009 11:24 AM | Reply | Permalink
Well, judicial activism in defense of poor, oppressed white men is no vice.
June 29, 2009 2:21 PM | Reply | Permalink
How exactly does this throw away Griggs? It actually rests almost entirely on Griggs.
As for "validating" the test, can you explain how New Haven didn't do it or, better, what they should have done that they didn't do?
June 29, 2009 4:43 PM | Reply | Permalink
Well, after Griggs, Congress essentially added the holding to Title VII. As the Court noted in its decision, "Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity." Ibid. Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.”
My problem with the Supremes' treatment of the case is its treatment of the last sentence. The majority found that the goal of avoiding liability was not an adequate defense, particularly because the test appeared to be job related. This case, however, never went to trial, so the Court was dealing with evidence obtained in discovery and presented in motions but not subject to cross examination on the relevant issues, even as determined by the Court. Can anyone say today that the black firefighters could not have shown that using a "hands on" test has less disparate impact and still serves the city's needs? Does anyone give basketball or football recruits a multiple choice test? The NFL does gives an intelligence test, but it's a piece of information and not a screening device.
Reasonable people can disagree. But I have a problem with this kind of decision-making.
June 30, 2009 9:39 AM | Reply | Permalink
So it seems she has sided with four Justices, two of whom (including the one whose seat she has been been nominated to take) were appointed by Republican Presidents. Clearly if her decisions are in agreement with moderate Republicans she is a left-wing lunatic and not qualified to serve on the nation's highest court.
June 29, 2009 11:25 AM | Reply | Permalink
George, can you explain what you mean by an "activist decision? The word activist is bandied about frequently by neocons in an attempt to discredit judges whose decisions they oppose. Rarely, if ever, does anyone explain what they mean when they complain of activist judges. To me, it shows a complete lack of reasoning. Instead of arguing why a particular judge was incorrect/wrong to rule a certain way, they simply resort to the lazy argument that "it's another example of activist judges". Weak!
June 29, 2009 11:31 AM | Reply | Permalink
When I use the term "activist", I mean that it's "outcome determined" rather than "legally determined". In other words, you work backwords from the ending. I think when the Repubs bandy the term about, they're essentially describing decisions with which they don't agree.
Of course, all lawyers know that there are usually two threads of legal authority underlying any proposition. Choosing one over the other isn't an activist action. Here, however, that's not what they did.
June 29, 2009 12:06 PM | Reply | Permalink
It all depends on whose oil you're smelling. "Activist judges" are totally evil, according to the RNC, when they come out in favor of gay marriage, hate crimes legislation, Roe v. Wade, etc,etc.
They are good and fair judges when they make the kind of decisions to gladden RNC's heart.
June 29, 2009 12:47 PM | Reply | Permalink
George,
I appreciate the clarification although I think we need a word other than "activist" to describe the difference between outcome based v legal based.
Having said that, isn't this difference a false proposition based on a black and white standard (no pun intended) where judges must rule based on either one, rather than using both, i.e. interpreting the law and ruling based on the outcome?
June 29, 2009 2:12 PM | Reply | Permalink
I agree that the term "activist" doesn't really capture anything; we wouldn't even use it if the Repubs hadn't started it and the media made it part of the lexicon.
Still, I don't think it's a false distinction because I don't think judges necessarily have to go one way or the other. It's possible to honestly examine precedent and decide it's no longer adequate in light of changed realities, or to conclude that respect for precedent requires adherence with an invitation to Congress to change the law if that's necessary.
What the conservative majority repeatedly does is ignore precedent or invent something and apply it immediately. In this case, for example, the majority evidently decided to reverse the lower court's decisions. However, they didn't have 5 votes to hold the "disparate impact" part of Title VII unconstitutional. So, they merely said that New Havens' defense -- that the city was vulnerable to a law suit because it couldn't prove the test was valid -- was subject to a higher standard that the city didn't meet. Obviously, because that higher standard didn't exist before yesterday. Rather than remand the case for consideration of the evidence in light of the new standard, the majority simply awarded the white firefighters promotion. Tada!
Maybe the word "activist" isn't adequate for what they did, but there's something here that reeks of an agenda.
June 30, 2009 8:12 AM | Reply | Permalink
When I use the term "activist", I mean that it's "outcome determined" rather than "legally determined". In other words, you work backwords from the ending. I think when the Repubs bandy the term about, they're essentially describing decisions with which they don't agree.
Of course, all lawyers know that there are usually two threads of legal authority underlying any proposition. Choosing one over the other isn't an activist action. Here, however, that's not what they did.
June 29, 2009 12:52 PM | Reply | Permalink
Damn activist Justices overturn the will of the elected body, expand the application of Federal statute over a state entity.
June 29, 2009 11:34 AM | Reply | Permalink
This USSC opinion stands for the proposition that law is politics by another name.
June 29, 2009 11:41 AM | Reply | Permalink
I won't get into the complexities of this "affirmative action" situation.
But I will say that a 5-4 decision just means that Sotomayor is perfectly in step with the 4 sitting Judges that inevitably are the opposition block to the 4 (Roberts, Scalia, Alito, Thomas) - with Kennedy more often than not with them.
This changes nothing in respect to Sotomayor.
June 29, 2009 11:55 AM | Reply | Permalink
Those activist conservative judges! Don't they know their role is to enforce the laws, not to change them?
Am I surprised the Gang of Four (Plus One) rule in favor of white men? not.
June 29, 2009 12:11 PM | Reply | Permalink
I enjoyed reading this opinion. Justice Ginsburg ate Justice Alito for lunch (munch... munch...). It's a shame the Supreme Court came down the way they did, but it was hardly a slam dunk on either side.
June 29, 2009 12:57 PM | Reply | Permalink
In a 5-4 decision--in which Anthony Kennedy was once again the swing vote
Thanks, Ronnie Reagan. The gift that keeps on giving. Does Kennedy have any health issues? Is he pining for the north woods, like Souter? Nothing will change on the SC until he leaves - expect lots and lots of 5-4 decisions that Clarence Thomas will write (or at least go along with) the majority opinion for.
June 29, 2009 1:17 PM | Reply | Permalink
Interesting. We usually see this funny little irrationality applied to congress. Why do you want Kennedy off the court, rather than one of the real evil guys? Sure, three of them are too young for a realistic shot, but Scalia (IMO the worst of the bunch) is a year older than Kennedy. He escapes your wrath...it's only the fair-weather friend you apparently want dead. Just like people here constantly scream for the blood of various Democrats that "aren't progressive enough" when they could be fighting the worst of the worst Republicans instead.
I've wondered about this strange, but apparently natural, phenomenon for a while, and I'm really glad you posted that. It's so much more obvious when applied to a court of 9 that's so conveniently divided into 4 bad guys, 4 good guys and one swing.
June 29, 2009 3:01 PM | Reply | Permalink
Well, when a so-called "swing" voter votes with the conservative wing of the party more often than not, I can't exactly call him a "friend" to progressives. And, yes, as a progressive, I would rather see the "swing" vote become reliably left-leaning. So, excuse the fuck out of me.
As far as wanting Democratic congresspeople to actually vote for progressive causes, especially ones that are popular (see: Diane Feinstein), again, excuse the fuck out of me. The "worst of the Republicans" have pretty much been voted out of office, and Democrats have a huge numerical superiority in both houses of Congress, yet Democrats still feel that they have to pander to the right-wingers ON EVERY GODDAMN ISSUE.
Yes, I would like to see Democrats grow backbones. Yes, those that do not should get aggressive primary challenges. If that fits your definition of "irrational," so be it.
June 29, 2009 4:17 PM | Reply | Permalink
And, yes, as a progressive, I would rather see the "swing" vote become reliably left-leaning.
See, the trouble here is the rather part. Because both of your posts sound like you would rather have Kennedy replaced than Scalia. Just like the posts from people like you attacking "weak" (read: electable) congressional Democrats seem to indicate that you'd rather see Republicans in those seats.
For some reason, many posters here would replace people who vote with us sometimes instead of replacing people who never vote with us. That's the irrationality to which I referred...although your second post's tone suggests you may have more than I noticed.
June 29, 2009 5:57 PM | Reply | Permalink
Interestingly, Scalia today joined the liberal members of the court in ruling that state regulators had the right to go after predatory lenders when the feds won't:
http://www.mcclatchydc.com/251/story/70985.html
Justice Kennedy voted with...Roberts, Alito and Thomas.
I bow down before your rationality and wisdom, oh great hunter.
June 29, 2009 7:40 PM | Reply | Permalink
John Cornyn is also using Rove's Math:
"Today's decision is a victory for evenhanded application of the law. Saying the earlier decision was 'antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,' the Supreme Court saw the case for what it is: a 'race-based decision' that violates federal law. And while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed."
http://blogs.chron.com/txpotomac/2009/06/cornyn_lauds_supreme_court_rul.html
Haven't read any of the dissents, but given that four justices voted to uphold the circuit court's decision, it seems highly unlikely that they were all "critical" of the trial court ruling.
June 29, 2009 1:35 PM | Reply | Permalink
More to the point, Sotomayor didn't write the trial court opinion; what does "endorsing" mean anyway?
June 29, 2009 2:08 PM | Reply | Permalink
Does any of this really matter? Clearly she is going to be confirmed by a wide margin. I am guessing over 75 when the vote is finally taken.
June 29, 2009 2:05 PM | Reply | Permalink
Ugh. Who really cares any more what conservatives have to say, about anything? They have absolutely no credibility left.
June 29, 2009 11:11 PM | Reply | Permalink
A guess the 2 Far Right Clowns, Roberts and Thomas, finally find a way to Stick It to the President! This was a political move, no justice was serve. As a senator, the president voted against Roberts confirmation. On the campaign trail Obama slam Thomas, saying he would not have nominated him in the first place.
THINK about this: ACCORDIND TO THE AP, Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion. Go figure!
Justice Ginsburg said the court SHOULD have assessed "the starkly disparate results" of the exams against the backdrop of historical and ongoing inequality in the New Haven fire department. As of 2003, she said, only one of the city's 21 fire captains was African-American.
THIS CASE, in my opinion, is far from fully-settled. This is going back to business as usual! Roberts and Thomas rendered political opinions, and never follow the law.
June 29, 2009 11:52 PM | Reply | Permalink