Sotomayor and the Ricci Case

Tuesday, June 30, 2009

The Supreme Court handed down a major decision a few days ago that pertains to Title VII and racial discrimination. The case, Ricci et al. v. DeStefano et al., has been getting a lot of press. The case can be found here. It is a long one, at 93 pages, so I will forgive you if you don't read it. Scotusblog has one of the more objective views of the case and summarizes the main points and holdings. The Court has long held that any kind of race-based selection criteria will not be allowed unless there is a substantial amount of evidence that it is necessary to remedy a past discrimination. In applying this to the Ricci case, they said an employer may not refuse to hire or promote whites unless the criteria is skewed against minorities and they are at risk of being sued. In this case, the Court felt that the fire department did not meet this criteria.

Volokh has some good analyses here and here. The second article is especially interesting, in that it uses this case to refute the notion that the Roberts Court is pro-business. Another factor that has popped up is how this will influence the Sotomayor nomination. She was part of the 2nd Circuit Panel that was overturned by the Supreme Court. One complaint is that panel she was part of initially wanted to dispose of this case with an unpublished, unsigned summary order. Eventually, they settled on a one paragraph opinion. The fact that the Supreme Court had such a difficult time with this issue (in both the majority and dissenting opinions) suggests that it may not have been the no-brainer that Sotomayor's panel thought it was.

That being said, there are plenty of legal scholars that support her position and 4 of the liberal Justices agreed with her. She has not really surprised anyone here. I think her lack of analysis on this issue isn't good, but it doesn't rise to the level of a disqualification. It would be different if this was part of a pattern, but I don't think it is. Obama has the votes in the Senate to get this nomination through. Unless it is discovered that she has been taking trips with Gov. Sanford, I think it is inevitable that she will be on the Court.


B Mac 11:47 AM  

I'll be interested to read the decision when I have time. There's a good chance that it will go a long way to define the 14th amendment as color-blind, and toward defining who gets to make those determinations.

Muy interesante...

Smitty 1:21 PM  

I am honestly not troubled by any presence or lack of study from Sotomayor on this case. In fact, I think it was argued somewhere that she followed (NPR? Cole?) some precedent on this and didn't give it much thought.

What truly bugs me is how much is being made out of this politically, and because of the general population's ignorance about how and why SCOTUS works the way it does, the negative plays well.

I do not agree with the notion that this was somehow judicial activism. Indeed, steves, as you say consistently, judicial activism only applies as an argument from the losing side.

The notion that this is, as that fucking windbag Rush said, a 9-0 slap in the face. Try 5-4, and not an easy 5-4 at that.

I think I want to seek some clarity on the whole notion that getting your decisions overturned as a lower court judge is a bad thing. I can imagine in some circumstances it could be. But it seems to me that cases getting overturned is one of the reasons SCOTUS exists, no? Either your decision has ramifications on other decisions so in the name of a consistent standard applied across the board, some decisions get overturned, and some get confirmed. And in some of the decisions that get overturned, it's not like it's an outright rejection of that decision. There may be pieces that are good, and pieces that need to be changed.

Oversimplified, but do I have that kinda close?

In other words, getting overturned is rarely, if ever, some sort of admonishment or punishment for "judicial activism" or shoddy decision-making abilities. It's about creating a standard. Which, of course, also changes over time given changes within SCOTUS .

steves 5:08 PM  

B Mac, I think you are right in your assumptions, though this case didn't do much at setting up some kind of test. I do think it came to the right conclusion, though.

Smitty, it is too bad that these kinds of hearings have been turned into a political circus. Traditionally, the "consent" role of the Senate was to prevent the President from putting a crony or incompetent into an important post. It was not meant to weed out people whose politics were disagreeable to either party. The Roberts and Alito hearings were a disgrace, with accusations of racism and misogyny. I don't expect the Republicans to behave any better.

As for decisions being overturned, it is impossible to comment unless you know the context of the decision. As you say, some decisions are wrong and deserve to be overturned. Some are not and deserve to be upheld. The Volokh staff are not huge Sotomayor fans, but none of them think anything she has done should prevent her from being confirmed. I tend to agree.

Oversimplified, but do I have that kinda close?

You are spot on in your analysis.

B Mac 6:29 PM  

I think there's an assumption among the general public that the law is applied the same in all parts of the country. Seems like a fair assumption... even though it's completely wrong.

I feel safe guessing that the majority of Supreme Court decisions re: federal laws involve split in interpretations between the circuits. A circuit can apply a law exactly as it has been applied in previous cases in the same circuit (an important component of judicial restraint), but still be out of line with 8, 10, or 12 other circuits.

From what I can tell, the Circuit court Ricci decision was generally in line with 2nd Circuit jurisprudence, and with cases of other circuits. The fact that it was overturned doesn't mean that Sotomayor, et al. were "wrong", only that the High Court is seeking to shift the interpretation of the 14th amendment. This doesn't make Sotomayor less qualified, nor does it make the Supreme Court "activist".

B Mac 6:30 PM  

FWIW, when Kennedy writes the decision, there's a good chance it will not end up being as big a shift in interpretation as it could have been.

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