Legal wrangling - Ricci v DeStefano

[drwex]

SCOTUS's ruling in this case is going to figure prominently in near-term politics, as those who would like to block Judge Sotomayor's nomination to the Supreme Court are going to blow this one up to blimp size. So let's have a look at it.

First, the ruling itself: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-1428
Ginberg's dissent: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=07-1428#dissent1
News story: http://www.latimes.com/news/nationworld/nation/la-na-firefighters-court30-2009jun30,0,796881.story

It's another 5-4 case with Kennedy again as the swing vote siding with the conservative bloc. That's disheartening, but not hugely surprising. As the Times story points out the case is a victory for the conservative side, but the decision is crafted to leave the underlying law intact. What Kennedy's opinion says is that the city did not apply the law's tests properly. What Ginsburg's dissent says is that the majority is playing pick-and-choose with the evidence presented and that in the minority view there is enough evidence to support the city's claim.

The most important point of law (rather than politics) I see here is that the case sets a standard whereby a claim of discrimination harm can now be brought even when the plaintiffs are actually not denied anything. That's sort of odd, given Roberts' assertion in other cases that he's opposed to opening up new classes of lawsuits, but that's how I read it.

The key point of politics is that Sotomayor's Circuit one-paragraph decision drew criticism from both sides of this case. She's going to find herself explaining that (probably over and over) this fall. One of the joys of being a Circuit judge is that you can't easily predict in advance what's going to cause SCOTUS to be looking over your shoulder and - in effect - second-guessing you.

ETA: it was noted on NPR this morning that Ginsberg read her dissent from the bench, a slightly unusual move. In addition, she made a point of jabbing at the conservatives on the issue of the emotional appeals of the plaintiffs, one of whom is severely dyslexic and had to go to extraordinary means to study for a written exam. Given how conservatives have hammered at Sotomayor and Obama for remarks about "empathy" I can't help feel like this was a deliberate political act. Ginsburg should know better. Politicizing the Court is inevitable but it's still bad practice whether it's Bush v Gore or oblique commentary on an upcoming nominee.

The case itself looks like a very tough call. Kennedy and Ginsberg both do good jobs of laying out supporting facts, and both agree the question turns on whether the city had enough justification for its action. I would not like to have had to decide this one. Although I am sympathetic to the concept of "reverse discrimination" I am more persuaded by Ginsburg's argument here that no one has received a promotion in preference to the plaintiffs. Without such an actual harm what they're saying amounts to asking the city to proceed without discretion or regard for impact, as well as the likelihood of lawsuit. That strikes me as not sensible.

As an aside, I don't like the term 'reverse discrimination' and I wish the media would stop using it. It's a sad fact of American society and history that 'discrimination' has become shorthand for 'discrimination against blacks' because discrimination against blacks has such a large and long-standing history. In Ricci v DeStefano two Hispanic applicants joined in the suit and there are other cases where discrimination is enacted against other persons of color, or Jews or Asians or Irish or gays. To postulate "reverse" discrimination is to think of a complex and difficult situation in unrealistic polarities. Would a person who had one European and one African parent sue for discrimination or reverse discrimination? The question is nonsense, as is the concept. What matters is the intent and impact of actions, taken within a historical concept. That's why Title VII has a "disparate impact" clause in the first place.

Comments

Re: That's potential harm

[c1.livejournal.com]

But it could have been any one of those candidates that got the nod. Instead, the city decided to change the rules near the end of the game; ensuring that none would get the nod, regardless of how good they were. The city, in essence, told the applicants from the start that if they passed the test (and presumably passed oral interviews, and whatnot), they would be in contention for a promotion in rank and (presumably) pay.

The opinion states that the test was written to a sub-10th grade reading level, the testing company offered study materials and a listing of relevant chapters where the test questions were taken from, and a 3 month preparation period. Speaking to another post regarding unfairness of multiple choice tests, I'm not sure how much easier that test could have been made.

Having been passed over myself (I got a 92% on the firefighter's test back in the 90's-- white males needed a 96%, while minorities could pass with a 70%), this ruling, in my opinion, couldn't have been more correct.

Regarding Sotomayor, IIRC, this marks the seventh case of hers that's gone to the SCOTUS. Six of the decisions onto which she signed were overturned, and of the one which wasn't overturned, the SCOTUS singled her out as having a misguided opinion.
Personally, I'm not sure how this qualifies her for a seat on the highest bench in the land. I think our constitutional law professor in chief could do better than her.