Thoughts on Ricci
by Jonathan Singer, Tue Jun 30, 2009 at 03:21:42 AM EDT
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.