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 One complaint is that panel she was part of initially wanted to dispose of this case with an unpublished, unsigned summary order.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.