The Supreme Court's predictable 5-4 vote to reverse the decision by Judge Sonia Sotomayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotomayor position was unreasonable.
After all, it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee's ruling to the contrary.
What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.
This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed... opinion" by U.S. District Judge Janet Arterton.
Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base.
Disparate-impact law, as codified by Congress in 1991, specifies that an employer whose qualifying exam or other selection criterion produces racially disparate results can be held liable for unintentional discrimination only if (1) the test is not "job-related... and consistent with business necessity," or (2) the employer is presented with and refuses to adopt another, similarly job-related test with less disparate impact.
Contrary to the Sotomayor-endorsed opinion, the Ginsburg dissent states (on page 19) that an employer's decision to jettison a promotional test under circumstances like this case would be legal only if the employer had "good cause to believe the [test] would not withstand examination for business necessity."
Ginsburg added (on page 26 and page 33) that "ordinarily, a remand for fresh consideration" would be proper because the lower courts (including Judge Sotomayor) had not carefully considered the evidence of "pretext" and racial politics.
To be sure, Justice Ginsburg also found (against the clear weight of the evidence, in my view) that New Haven did have good cause to believe that the test was invalid. She also said that if ether party was to be granted summary judgment, it should have been the city, and that the Supreme Court majority had erred in awarding summary judgment to the high-scoring plaintiffs.
But as a matter of law, the difference between the Sotomayor position and the Supreme Court dissenters' position is nonetheless important and revealing.
Both, in my view, would risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.
But while Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.
And racially disparate scores on virtually all objective tests are unfortunately the norm, not the exception. It's not hard to understand why: Studies have long showed that because of unequal educational opportunities and cultural differences, the average black high-school senior has learned no more than the average white eighth-grader -- and considerably less than the average white senior.
Of course, this would be no justification for basing promotions on test scores that have little relationship to the requirements of the job. But the New Haven exam was clearly job-related and carefully developed to insure race-neutrality, as the majority opinion of Justice Anthony Kennedy detailed.
To be sure, as Ginsburg argued, alleged imperfections in the New Haven test were attacked by black firefighters, city officials, and others after the fact. But every written and oral objective test ever devised can be similarly attacked as imperfect. If the law were as Judge Sotomayor ruled, no employer could ever safely proceed with promotions based on any test on which minorities fared badly.
The broader questions lying behind the New Haven case are whether this nation will ever get beyond racial preferences and quotas such as those encouraged by both the Sotomayor and the Ginsburg positions, and whether it will ever realize Dr. Martin Luther King's dream of a nation where people are judged not by the color of their skins, but by the content of their characters.
Justice Ginsburg's prediction that the New Haven decision "will not have staying power" seems to reflect a conviction that the nondiscrimination ideal articulated by Dr. King should be put on hold for the indefinite future, if not forever. Judge Sotomayor's position in the case, and some of her off-the-bench pronouncements, suggest the same even more strongly.
President Obama's campaign rhetoric about getting away from identity politics and racial spoils seemed to promise something rather different.
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Responded on June 29, 2009 8:06 PM
Steve
Is it 9-0 or 5-4? Pick one.
Responded on June 30, 2009 8:50 AM
Scott
The decision of 5 to 4 was on granting summary judgement to the plantiffs.
However, the 4 dissenting justices would have remanded the case back to the lower court (basically saying that they were wrong.) Thus the 9 to 0 "decision" on Judge Sotomayor's ruling.
Trying reading, "left to right, top to bottom, groups words together to form sentences."
Responded on June 30, 2009 9:27 AM
meater maid
Wow, with all these legal experts floating around Hannity, Rush, this author and "Scott" why do we even need a court system. Just ask the repubs who have all the answers:
The decision of 5 to 4 was on granting summary judgement to the plantiffs.
However, the 4 dissenting justices would have remanded the case back to the lower court (basically saying that they were wrong.) Thus the 9 to 0 "decision" on Judge Sotomayor's ruling.
Trying reading, "left to right, top to bottom, groups words together to form sentences."
This is like saying the Steelers won the super bowl 10 to 7, but because they didnt like the play the other team scored on, it was really 10 to 0
And hey right wing Im sure by being bitter, sarcastic, acting like you know everything even when making your selves look childish (as in this case) and against fairness for minorities is the fast track back to dominance! Good Luck!!
Responded on June 30, 2009 9:36 AM
Avi
Honestly, I know it is easy to twist judicial opinions around for your own rhetorical needs (since most people have no comprehension of the nuances involved with judicial opinions) but this is ridiculous. Both the majority and minority opinions essentially acknowledged that the precendent before this case was unclear at best and the lower court chose a path that corresponded to existing precedent... it is the Supreme Courts job to clarify that, not the lower appeals court.
Responded on June 30, 2009 9:40 AM
Joe
If, as you say, sending the case back to the lower court by these 4 effectively means the lower court was wrong, shouldn't these 4 be doing their job as judges and JUDGE that "wrongness" by voting with the other 5? If the 4 dissenters are not going to pass judgement even though their opinion effectively reveals their judgement, aren't they just weasles in black robes shirking their duties? Isn't this dereliction of duty cause for "dis-robing" any SC judge?
Responded on June 30, 2009 10:08 AM
Daniel
"This is like saying the Steelers won the super bowl 10 to 7, but because they didnt like the play the other team scored on, it was really 10 to 0"
Actually, it's more like saying that the score was 10 to 7, but one decision by a referee was universally acknowledged by the NFL to be a bad decision.
It's normal for courts to make decisions on many of the smaller issues within the case as well as on the case itself. This is what the Supreme Court did. They said the appeals court was wrong (well, 5 of them said it, the other 4 said that the appeals court was right), but they also said - unanimously - that Sotomayor's specific opinion on this issue was wrong.
I do believe the appeals court consists of more than one judge, so it is telling that while the court itself made a decision that, although incorrect, was defensible, Sotomayor's SPECIFIC opinion was completely at odds with the supreme court.
Responded on June 30, 2009 10:19 AM
Continuum
Hey, the court ruled 5 to 4, but if you can make your headline appear lopsided by saying 9 - 0, then all your rightwing friends will be happy. Look for this headline on today's Fox.
I wonder what other SCOTUS rulings we can change to 9 - 0 with a just little interpretative reading.
Responded on June 30, 2009 10:50 AM
flamebait
"Hi I'm angry leftist troll. I don't say anything meaningful. I just say things like repubs and rush and fox news, grrr. Then I sign off with a biting rhetorical question. Har har har."
Here, I'll give you a little teaser to get you started on this little thing we like to call... "thinking." The point of the article is that every justice on the Supreme Court disagreed with the basis for the 2nd Circuit decision. Do you agree or disagree? If you disagree, on what basis would you seek to reconcile the various Supreme Court opinions with the 2nd Circuit's decision?
Try not to hurt yourself. If you start feeling dizzy or disoriented because of this new engagement with rational discourse, don't force it. Take a deep breath. Count to ten. And just start at the beginning. Remember: practice, practice, practice.
Responded on June 30, 2009 11:10 AM
Gene44
Seems to me that the verdict speaks well of a legal review. Sort of like the new Energy Bill with 300 pages added at 0300 to avoid anyone reading it. Frannie Mae and Freddie Mac get more of the taxpayers money for affordable housing under this new energy bill. When will the Supreme Court take up fraud committed by the government against the people?
Responded on June 30, 2009 11:18 AM
Ellen Kudlicki
While the rest of you wrangle over syntax, isn't the bottom line that the actions by Sotomayor's decusion were overturned? And furthermore, were they not overturned due to the belief that actions taken by her court demonstrated bias and an unwillingness to get to the truth? SCOTUS is somewhat limited in their ability to make public statements, but I read this as an indictment of Sotomayor and a shot across the bow regarding her perceived ability to maintain a higher level of detachment when making court decisions. I wonder if anyone on the Congressional committee is paying attention. This is much larger than the media, the administration or Sotomayor herself, want to admit.
Responded on June 30, 2009 11:21 AM
Ed
Here's my take on the ruling:
This decision is nothing but red meat for a bunch of right wing ideologues. This despite the fact that this was clearly a case of justices legislating from the bench. Activist judges, if you will. But IOKIYAR.
Sotomayor will still be confirmed, by a wide margin, despite all the whining and dissembling going on in the right wing nutosphere. Deal with it.
Responded on June 30, 2009 11:45 AM
Rick
This is so much nonsense. As a Circuit Court Judge, Sotomayor did not have the authority to make a sweeping ruling of the nature that SCOTUS can. She simply is not allowed to throw away precedent in the way SCOTUS can.
This 9-0 headline is so much nonsense.
Responded on June 30, 2009 11:53 AM
Allan
This is great news! Thanks, Stu, for training us all how to argue like Rush Limbaugh and sound almost credible in the process.
The election of Barack Obama was unanimous! While 40 something percent of the electorate expressed their support for Obama by casting a ballot for McCain, clearly they were sending a message to their preferred candidate Obama that if he failed to perform as expected, they might vote for the Republican in 2012.
Responded on June 30, 2009 12:19 PM
The Other Steve
9-0? I thought it was 5-4?
Responded on June 30, 2009 12:33 PM
Magic Dog
It was a 5-4 ruling, not a 9-0 ruling. And it wasn't "her" ruling. She was one of three judges who made it, and the whole Second Circuit affirmed the ruling. You wingnuts can't discuss a single thing without lying about it. No wonder the American electorate has rejected you for the last two elections in a row. See you in '10 and '12.
Responded on June 30, 2009 12:39 PM
Jim
Why is this hard to understand? Five justices agreed with the plaintiffs while four agreed with the defendant, but all nine disagreed with Sotomayor, who held that the case was not important enough to bother with. She did not just agree with the defendant; she said that the case was so open-and-shut that it did not even merit a trial or an opinion. Judging by the impassioned opinions on both sides, it is fair to say that all nine justices rejected this judgment. Of course, it is more likely that she knew exactly how important this case was, and sought to prevent it from coming to trial in order to avoid precisely the outcome that has now transpired. This should be the focus of the discussion in the Judiciary Committee regarding her nomination.
You lefties ought to understand an issue before venturing an opinion on it. Sarcasm and vitriol don't compensate for ignorance, they compound it.
Responded on June 30, 2009 12:42 PM
CJ
Man, 2 much Limbaugh 4 you. The vote was 5-4, 5 - 4!!! Not 9-0
Responded on June 30, 2009 12:45 PM
Phil
I write neither to support nor attack the original piece but to explain that there are practically an unlimited number of holdings for any given case. For example, in this case: - Summary Judgment for the Plaintiffs - Summary Judgment for the Defendants - Vacated and Remanded for a determination of whether the city had a "strong-basis-in-evidence" for fearing a disparate impact claim You could have opinions that concur in the judgment but for a totally different reason (for example, SJ for the Plaintiffs based on the equal protetcion clause instead of Title VII). You could hold that the plaintiffs lacked standing because they suffered no harm. You could hold that the lower court's ruling was moot because the facts had changed. You could concur in part and dissent in part. I could go on but surely you get the point. There are actually cases with no majority opinion because the Justices couldn't get 5 to agree. To view Supreme Court decisions as a "yes/no" vote is preposterous. There's a reason the Ricci decisi...
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I write neither to support nor attack the original piece but to explain that there are practically an unlimited number of holdings for any given case. For example, in this case:
- Summary Judgment for the Plaintiffs
- Summary Judgment for the Defendants
- Vacated and Remanded for a determination of whether the city had a "strong-basis-in-evidence" for fearing a disparate impact claim
You could have opinions that concur in the judgment but for a totally different reason (for example, SJ for the Plaintiffs based on the equal protetcion clause instead of Title VII). You could hold that the plaintiffs lacked standing because they suffered no harm. You could hold that the lower court's ruling was moot because the facts had changed. You could concur in part and dissent in part. I could go on but surely you get the point.
There are actually cases with no majority opinion because the Justices couldn't get 5 to agree. To view Supreme Court decisions as a "yes/no" vote is preposterous. There's a reason the Ricci decision is 93 pages (including 4 different opinions) and it's not because they wrote "yes" or "no" really really big.
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Responded on June 30, 2009 1:02 PM
ed
can someone explain why it is the sotomayor-endorsed opinion? did she personally endorse it? was she the only judge on the opinion? i thought court of appeals decisions had at least 2 judges.
Responded on June 30, 2009 1:15 PM
Reggie
Formula: Listen to Rush Limbaugh, write what he says and call it a day.
Responded on June 30, 2009 1:55 PM
The Other Steve
Clearly it was a 9,000,000 to Zero decision.
Why? I don't know. I just made that up because it sounds like it supports my argument.
Responded on June 30, 2009 2:17 PM
Daniel A
It is my understanding that Sonia Sotomayor did not ever write the opinion on the Ricci Case. She was part of the 3 Judge Panel that rendered a unanimous decision. However, since she is replacing the Judge that agrees with her, it should be ok. Sorry ... using Right Wing logic here.
Responded on June 30, 2009 2:38 PM
C. William Chattin
Stuart's point was already made early yesterday afternoon at ObamaPundit: http://www.obamapundit.com/2009/06/29/supreme-court-rules-9-0-against-sotomayor/ "The one and only thing that should be understood about this case as it relates to Judge Sotomayor’s nomination is that all nine members of the Supreme Court found that Sotomayor’s court was in error. Press reports that the Court “ruled against Sotomayor 5-4 along partisan lines” fundamentally misrepresent the decision issued today."
* * *
"[A]ll nine justices agreed that summary judgment ...
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Stuart's point was already made early yesterday afternoon at ObamaPundit:
http://www.obamapundit.com/2009/06/29/supreme-court-rules-9-0-against-sotomayor/
"The one and only thing that should be understood about this case as it relates to Judge Sotomayor’s nomination is that all nine members of the Supreme Court found that Sotomayor’s court was in error. Press reports that the Court “ruled against Sotomayor 5-4 along partisan lines” fundamentally misrepresent the decision issued today."
* * *
"[A]ll nine justices agreed that summary judgment should not have been granted in favor of New Haven, a finding that Sotomayor had affirmed twice — once by summary order and once in an analysis-free, eight-sentence opinion. Justice Ginsburg also found that Sotomayor’s court had used the wrong standard: 'The lower courts focused on [New Haven]’s ‘intent’ rather than on whether [New Haven] in fact had good cause to act.'”
God knows from where the Sotomayor defenders are drawing their conclusion that any of the justices agreed with the two decision issued by Sotomayor's panel. While it can be argued the precedent was foggy when that panel issued its decision, those 3 justices (lead by Sotomayor) didn't even attempt to wrestle with the issues, instead issuing summary decisions (the first of which could not have even been appealed). There is no defending that.
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Responded on June 30, 2009 2:44 PM
eddy
re: 5-4 versus 9-0
If 5 justices voted for Miss North Carolina, 4 voted for Miss California and Sotomayor voted for Perez Hilton, didn't all nine justices disagree with Sotomayor?
That's the 9-0 reference. All nine disagreed with Sotomayor.
Responded on June 30, 2009 3:02 PM
David
"The Ninth Justice"?
I don't get it, aren't there already nine justices?
Shouldn't this blog be called "The Tenth Justice"?
Whatever, makes as much sense as saying this was a 9-0 ruling when factually it was 5-4.
Responded on June 30, 2009 3:05 PM
tboom
Pretend as you may, but the court was unanimoous and they said "We had hoped that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life; but in this case the Latin chick got it wrong"
Responded on June 30, 2009 3:07 PM
Al Swearengen
Lord Rush speaks, dissembling morons repeat.
Go to page 4 of this pdf, http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf, the actual ruling you idiots:
"KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C.J., and SCALIA, THOMAS, and ALITO, JJ., joined. SCALIA, J., filed a concurring opinion. ALITO, J., filed a concurring opinion, in which SCALIA and THOMAS, JJ., joined. GINSBURG, J., filed a dissenting opin-ion, in which STEVENS, SOUTER, and BREYER, JJ., joined."
Hmm, looks like 5-4 to me. I guess you rightwing tools need to go teach the USSC Justices how to count. "But, but, but, but, but...we have hairs to split to make ourselves look like morons!" you say. Continue on.
Responded on June 30, 2009 3:46 PM
C. William Chattin
um...Al...
That's because the Supreme Court was not tasked with, nor was it answering, the question: "was Sotomayor's decision correct?"
If it had been, the justices would have ruled 9-0 in the negative.
But, since the question they answered was -- "did the firefighers deserve summary judgment?" -- the ruling was 5-4.
This whole thing was already covered over at ObamaPundit:
http://www.obamapundit.com/2009/06/29/supreme-court-rules-9-0-against-sotomayor/
Read that entry, and you'll understand.
Responded on June 30, 2009 3:51 PM
Doug
Liberal debate techniques: When all reasonable arguments fail resort to ad hominem attacks.
Responded on June 30, 2009 4:08 PM
Elliott James Griffin
I am not a wingnut. I am not a Limbaugh drone. What I am is a person who reads and thinks critically, and I must say to the people who aren't even acknowledging the article itself or the many, many explanations of the "9-0" remark in the comment, what is your malfunction? Within majority and dissenting opinions there can be commonground. In a concurring opinion, in which someone signs on to form the majority, but has a slightly different take, it still counts towards the majority vote, or vice-versa with the dissenters---it is a matrix of ideas and opinions that converge at certain reconciliable points and completely diverge in others. If you can read, which these "republican'ts" drones seem not to be able to do, then you'd know that the author's original point was that while the 4 dissented and did not side with the plaintiffs, they did write that ALL lower courts failed to do what was right: have the city produce evidence supporting its claims that the test was racially-biased, and allow a jury/trial to decide whether it was or not. The lower courts did not que...
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I am not a wingnut. I am not a Limbaugh drone. What I am is a person who reads and thinks critically, and I must say to the people who aren't even acknowledging the article itself or the many, many explanations of the "9-0" remark in the comment, what is your malfunction?
Within majority and dissenting opinions there can be commonground. In a concurring opinion, in which someone signs on to form the majority, but has a slightly different take, it still counts towards the majority vote, or vice-versa with the dissenters---it is a matrix of ideas and opinions that converge at certain reconciliable points and completely diverge in others.
If you can read, which these "republican'ts" drones seem not to be able to do, then you'd know that the author's original point was that while the 4 dissented and did not side with the plaintiffs, they did write that ALL lower courts failed to do what was right: have the city produce evidence supporting its claims that the test was racially-biased, and allow a jury/trial to decide whether it was or not. The lower courts did not question the city's motives or actions at all, and even the SCOTUS dissenter's had a PROBLEM with this.
The vote came down 5-4 for the plaintiffs, but within that arena that is a myriad of opinions, and before you make a big hubbub about the "9-0" quip, please read critically.
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Responded on June 30, 2009 4:13 PM
eddy
Al Swearengen -- A dissent is not simply a vote for one side.
Suppose Sotomayor in a civil case found for the Defendant. On appeal, all nine Supreme Court justices could, as a matter of law, reverse in favor of the Plaintiff with five justices awarding both actual and punitive damages and four awarding only actual damages.
It would be a 5-4 decision over the issue of punitive damages with none of the justices finding for the Defendant. The 5-4 split is over the remedy and not the general liability. That is how a 5 to 4 decision can be 9 to 0 against Sotomayor's decision.
I presume all liberals can't be as obtuse as you.
Responded on June 30, 2009 4:25 PM
Michael
Dear Mr Taylor,
I read your post with much interest: It has re-confirmed SCOTUSBlog as the definitive resource in these matters. I thank you for your help in this matter.
Yours,
Michael
Responded on June 30, 2009 5:11 PM
Jonny Scrum-half
Elliot -- You're not quite correct. Justice Ginsburg's dissent said that the lower courts got it wrong when they focused on the City's intent, rather than on whether there was good cause for the City to believe that it risked a disparate-impact lawsuit if it proceeded with the promotions based on the test results. To be fair to Judge Sotomayor (and I don't think that Mr. Taylor or any of the other Republican supporters are interested in being fair to her), the lower courts' focus on "intent" was perfectly reasonable, given that the lawsuit alleged intentional discrimination. In such lawsuits, intent is the predominant issue. Ginsburg's dissent essentially suggested a new way to look at unusual cases like this, where the alleged intentional discrimination was justified by the City's argument that it was trying to avoid a disparate-impact lawsuit. In those instances, Ginsburg (splitting hairs, I think) wrote that the focus should be on whether there was good cause for the City to fear such a lawsuit. If so, then the City would be justified to thr...
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Elliot -- You're not quite correct. Justice Ginsburg's dissent said that the lower courts got it wrong when they focused on the City's intent, rather than on whether there was good cause for the City to believe that it risked a disparate-impact lawsuit if it proceeded with the promotions based on the test results.
To be fair to Judge Sotomayor (and I don't think that Mr. Taylor or any of the other Republican supporters are interested in being fair to her), the lower courts' focus on "intent" was perfectly reasonable, given that the lawsuit alleged intentional discrimination. In such lawsuits, intent is the predominant issue. Ginsburg's dissent essentially suggested a new way to look at unusual cases like this, where the alleged intentional discrimination was justified by the City's argument that it was trying to avoid a disparate-impact lawsuit. In those instances, Ginsburg (splitting hairs, I think) wrote that the focus should be on whether there was good cause for the City to fear such a lawsuit. If so, then the City would be justified to throw out the tests and start anew.
In short, this whole BS that the Supreme Court unanimously "rejected" "Sotomayor's" analysis is really bad-faith propaganda, and doesn't do justice to the serious and complex issues involved.
FWIW, I think that Scalia's concurrence is the key opinion in the case, and he gets it completely correct as far as I'm concerned.
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Responded on June 30, 2009 8:40 PM
Ellis
Stuart, You have exactly as much credibility now as you did when you were tossed off PBS's News Hour for being a partisan right wing hack. Or possibly even less, although I think zero is as low as one can go in credibility.
Clearly, any Supreme Court justice who finds him- or herself on the short end of an 8-1 decision (like Thomas did just the other day) should immediately resign from the court because the rest of the justices were unanimous in their disagreement with the minority opinion.
Desperate people seek desperate measures, but this argument is so stupid it boggles the mind.
Responded on June 30, 2009 10:39 PM
Tim Miller
Not a comment, but a question. There has been lots of commentary on what this ruling might mean for the law going forward But I haven't seen anything on what this ruliong means for the litigants. Do Ricci and his colleagues get their promotions? What happens to them?
Responded on July 1, 2009 8:16 AM
SmartyJones
Browsing through the 93 page Supreme Court doc is one way to read for yourself the decision and details. What is funny here is the reflexively political nature of looking at Supreme Court decisions. The bitterness of those who wish for legal approval of discrimination is entertaining.
It's true that all the SC Justices did not agree with Judge Sotomayor's basis for ruling. That's not altogether shocking for those with some legal understanding of the applicable law. What is shocking is the one paragraph dismissive action by Judge Sotomayor.
Even the 4 dissenters choose to find other means to support the action against Ricci and other firefighters who filed the action. They also recognize that the basis for this is not fully completed either.
MLK's dream of a man being judge by the content of his character, not his color has not yet been realized. We have to twist that obvious truth into knots in order to placate the extreme politicization of our courts.
Where have we seen this broken record? Change indeed.
Responded on July 1, 2009 1:46 PM
Steve
Mr Taylor, I think that you really need to go back and read Justice Ginsburg's dissent again (especially the two pages you cite). Justice Giinsburg is not rejecting the lower court's reasoning. She is objecting to the Majority SCOTUS opinion. Her claim is that the Majority opinion is offering a new substantive principle. Traditionally, when a new substantive principle is put into place, SCOTUS remands the case back to the lower court, to retry the case based on the new substantive principle. The Majority in this case failed to do this, and instead made their own opinion on the factual question that had not been before the lower court (i.e. whether there was a "substantial basis in evidence" that New Haven would have been liable to a disparate impact lawsuit). So Ginsburg is not rejecting Sotomayor's opinion (which, by the way, does not claim 'that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "...
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Mr Taylor,
I think that you really need to go back and read Justice Ginsburg's dissent again (especially the two pages you cite). Justice Giinsburg is not rejecting the lower court's reasoning. She is objecting to the Majority SCOTUS opinion. Her claim is that the Majority opinion is offering a new substantive principle. Traditionally, when a new substantive principle is put into place, SCOTUS remands the case back to the lower court, to retry the case based on the new substantive principle. The Majority in this case failed to do this, and instead made their own opinion on the factual question that had not been before the lower court (i.e. whether there was a "substantial basis in evidence" that New Haven would have been liable to a disparate impact lawsuit).
So Ginsburg is not rejecting Sotomayor's opinion (which, by the way, does not claim 'that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit' as you suggest) but rather the MAJORITY'S decision not to throw the case back to the lower court, so that further testimony could be called to determine whether there WAS a "substantial basis in evidence" that New Haven would have been liable to a disparate impact lawsuit. (And as you point out, Ginburg thinks that the Majority got the factual issue wrong too--if you look back at the record, there IS a "substantial basis in evidence" that the test was not a matter of "business necessity" and so upholding it WOULD have made them liable to a Title VII laysuit.) But I suppose you cannot really be bothered to read things carefully before you opine about them.
-Steve
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Responded on July 2, 2009 5:12 AM
Magic Dog
Steve, don't ask Stuart Taylor to go back and read Ginsburg's dissent. That implies that Taylor actually cares about accurately understanding and fairly reporting and analyzing the issues. He does not care; he is a far right-wing ideologue of the sort who willfully misrepresents everything he touches.
Responded on July 2, 2009 3:15 PM
jedermann
Since you are worried about the realization of Dr. King’s beautiful dream, I just have to say that I doubt that his dream implied an endorsement of color-blind schemes for judging people that honor and preserve persistent disadvantages that are the legacy of such historical abominations as slavery and nativism. When you finally stop beating someone you are not entitled to assume that they are then healthy.
Responded on July 2, 2009 3:43 PM
jedermann
“After all, it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee's ruling to the contrary.”
If, indeed, it really can hardly be expected that they would endorse the judgment of someone who Barak Obama has nominated, what is the use of arguing such highfalutin concepts as original intent or legal precedent or even the merits of the case? This is just plain, old, bare-knuckle politics and a foregone conclusion.