I spent quite some time last night reading the Supreme Court's decision in Ricci v. DeStefano. [PDF format] As a white male, I'm confident that the decision reached by the court majority is the right one.
On a more serious note, after reading the facts of the case as recited in the opinion, it's obvious that there were serious, competing legal doctrines at stake in this case. This was a difficult case. As the Court majority itself noted, legally, it wasn't cut-and-dried before it came to the Supreme Court. (On a moral and public policy level, absent evidence that the test was racially biased, the proper thing to do was to promote those that did best on the test.)
However, the fact that yesterday's decision was 5-4 doesn't validate Supreme Court nominee Sonia Sotomayor's ruling at the 2nd Circuit Court of Appeals. National Journal's Stuart Taylor:
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.
Sotomayor's confirmation is still as close as it gets to a sure thing in Washington, D.C. However, Sotomayor's handling of this case should draw some serious scrutiny during her confirmation hearings. Republicans won't defeat her, but they should use this opportunity to shine a bright light on the kind of judges President Barack Obama wants to put on the bench.
As to the decision itself, I want to highlight a comment from Alito's concurrence that should raise some questions about the court's liberal wing and the kind of empathetic judges they have.
The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.
Put more simply, is there any doubt that if those denied promotions had been 19 blacks and 1 Hispanic that the city would never have taken the actions it did and that the courts would've been quick to strike it down had they?