Thoughts on Ricci

I had been hoping to put up some thoughts yesterday on the Supreme Court's decision in Ricci v. DeStefano (.pdf), the New Haven firefighters case, but the time got away from me. Here goes a somewhat belated write up.

A great deal has been written about the 5-4 decision overturning an appellate decision, of which Judge Sonia Sotomayor was a part, will not likely harm the nominee's path to the Supreme Court. That seems right. With Sotomayor coming to a conclusion reached also by the four liberal members of the Court, including Justice David Souter, whom she was nominated to replace, her position falls squarely within the mainstream of judicial thought. The outcome could have been worse, no doubt, had the four liberal Justices voted to remand, making what inherently is a 5-4 split on the issues look more like a 9-0 rejection of Sotomayor's position. In the end, it's hard to see how today's ruling doesn't help, rather than hurt, Sotomayor's already strong chances of being confirmed by the Senate.

But more fundamentally, the Ricci decision indicates yet again that the conservative majority on the Supreme Court is willing to make sweeping changes to the law -- and make no mistake, yesterday's decision fundamentally altered the state of Title VII work discrimination law (with the concurring opinion by Antonin Scalia going so far as to question the validity of "disparate impact" claims in which no intentional discrimination is proved yet there still remains severe disparities in the impact on minority employees) -- by the narrowest of 5-4 majorities.

It seems to me that fundamentally altering the state of law in this country by narrow ideological majorities does not serve to enhance or even maintain faith in the judiciary. At a time which the Supreme Court has held a disapproval rating north of 25 percent, and as high as 48 percent, for an entire decade, it might actually behoove the Court to either stick with precedent or to find wider majorities that don't look purely ideologically determined  when overturning or drastically narrowing established case law. To its credit, the Court has seen some wider majorities in major cases recently, most notably in the NAMUDNO case in which the Court rejected calls to overturn a key portion of the Voting Rights Act. Still, in its most high profile case of the term, the Court split as it often does -- with the five conservatives lining up to narrow rights, with the four liberals trying to preserve rights -- and that isn't likely to help rebuild the credibility of the Court in the eyes of many.

Tags: Ricci v. DeStefano, Sonia Sotomayor, Supreme Court (all tags)



Re: Thoughts on Ricci

I guess I don't see it as a fundamental change.  Overturning "disparate impact," as Scalia apparently wants to do, would be fundamental.  But I see the actual decision as something less than fundamental.  I reference this interesting post from Jack Balkin:

What Ricci v. DeStefano, the Title VII case, and NAMUDNO, the Voting Rights Act case, have in common is that the five person conservative majority avoided doing what many commentators thought they would do: declare unconstitutional important aspects of important civil rights statutes dating back to the civil rights revolution of the 1960s... In each case, one member of the Court's conservative majority went where the conservative majority would not go: Justice Thomas flatly stated that the Voting Rights Act was unconstitutional; Justice Scalia questioned whether disparate impact liability violated the Fourteenth Amendment.

The interesting question is why the Roberts Court stopped short in each case...

I tease it so that folks may Read The Whole Thing, plus, it's kind of long.

It's important to recognize the threat that would be posed by the appointment of even more conservative Justices.  Yes, we could see sweeping judicial activism in any number of areas.  But in terms of where we actually are, we have a bare conservative majority that rates to contract, not expand, in the near future, and they actually seem to be a little unemboldened.

by Steve M 2009-06-30 03:39AM | 0 recs
Re: Thoughts on Ricci

I agree that the Court could have gone further here. But at the same time, it's somewhat difficult to see how an employer can stave off a situation like this in the future. Here the city saw a clear disparate impact, and though there may have been a business necessity to offset it, there were other alternatives available (e.g. those tests used by other fire departments around the country) with less of a disparate impact on minority hiring. As Justice Ginsburg says at footnote 7 of her dissenting opinion, "prior decisions applying a strong-basis-in-evidence standard have not imposed a burden as heavy as the one the Court imposes today."

by Jonathan Singer 2009-06-30 04:14AM | 0 recs
Re: Thoughts on Ricci

The City of New Haven could have avoided all of this by using a selection device (e.g., a test) that had been validated for the job at hand.  If evidence of validity can be shown, disparate impact is not an issue

by KTinOhio 2009-06-30 01:40PM | 0 recs


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