Conservatives find political fodder in firefighter decision
Monday’s ruling in the reverse discrimination case Ricci v. DeStefano was not particularly surprising for the decision itself, which was widely anticipated. As many court-watchers expected, in a 5-4 ruling, the Supreme Court held that, by not relying on a promotional exam on which a group of white firefighters had scored well, the city of New Haven had discriminated against the white men in favor of black and Latino firefighters who had not scored as well on the exam.
Yet within hours, conservative groups were spinning events: A 5-4 decision, they claimed, amounted to a unanimous ruling by the sitting Supreme Court justices against nominee Sonia Sotomayor.
Sotomayor, as one of three judges on the Second Circuit panel that decided the case on appeal, had ruled in favor of the City of New Haven.
“NOT EVEN ONE JUSTICE APPROVED SOTOMAYER IN RICCI CASE,” blared the headline of a statement issued shortly after the decision from Wendy Long, counsel to the Judicial Confirmation Network, a conservative organization that’s strongly opposed Sotomayor.
“Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of the U.S. Supreme Court have now confirmed was in error,” said Long.
At a conference call with reporters organized by the conservative Federalist Society, Gail Heriot, a professor at the University of San Diego Law School and commissioner of the United States Commission on Civil Rights, made the same claim: “This was a unanimous decision that the Second Circuit was incorrect. Nobody agreed with Sotomayor. Nobody.”
Roger Clegg, President and General Counsel of the Center for Equal Opportunity, which describes itself as a “think tank devoted exclusively to the promotion of colorblind equal opportunity and racial harmony,” also on the Federalist Society call, added that Sotomayor is “out of sync with even the four liberals on the Supreme Court, including the justice she’d like to replace, Justice Souter,” he said. That “suggests that we have somebody who’s quite out of sync with the right approach to the law in this area.”
Sen. John Cornyn (R-Tx) echoed that in his own statement issued within hours of the decision, praising the majority opinion and saying that “while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed.”
But were they?
Many legal experts don’t think so.
If they’d all agreed, “they would have sent it back,” said Richard Primus, a law professor at the University of Michigan who dismissed the idea that the justices all agreed that the Second Circuit was wrong.
In fact, Justice Ruth Bader Ginsburg specifically wrote that she would have affirmed the lower court rulings in favor of the City of New Haven. “Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity,” she wrote for the four-justice dissent. “Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.”
At one point in the dissent, she does write, in the context of criticizing the majority’s newly-announced rule requiring the city to satisfy a much heavier evidentiary burden to justify its decision than courts had required in the past: “When this Court formulates a new legal rule, the ordinary course is to remand and allow the lower courts to apply the rule in the first instance.”
But this was not an implicit criticism of the Second Circuit’s opinion, says Ian Millhiser, legal research analyst for the left-leaning Center for American Progress. “When it creates a new rule, the Supreme Court is supposed to send it back to the trial court to take a look at what should be done in light of this new rule. What Justice Ginsburg is saying in her dissent is if you want to create a new rule, then you shouldn’t decide this case, you should remand it and let the lower court consider the issue.”
Indeed, the majority acknowledges several times in its opinion that the issue has not been decided before.
“This action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue,” Justice Kennedy wrote for the majority.
Kennedy later acknowledges that the court is addressing the issue in order to provide guidance to the lower courts, which previously were left to decide the issue themselves.
“We consider, therefore, whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination. Courts often confront cases in which statutes and principles point in different directions. Our task is to provide guidance to employers and courts for situations when these two prohibitions could be in conflict absent a rule to reconcile them.”
Had the court not changed the rules, however, Justice Ginsburg states clearly that she would have upheld the lower court’s decision that New Haven did not violate the law.
So how did conservatives characterize the decision as a 9-0 slap at Sotomayor?
“Footnote 10 shows that Justice Ginsburg really does agree that the case needed to be remanded,” said Gail Heriot, the University of San Diego law professor and one of three legal experts who participated on the Federalist Society call. Although she admitted that she “had not had a chance to read the opinion” since it had only been issued about an hour and a half earlier, she had read that footnote. It shows the dissent “does not agree with the opinions below,” she said, adding, “this was a unanimous opinion that the courts below were in error. They just disagreed on what that error was.”
Clegg quickly chimed in in agreement. “Absolutely. The justices appear to agree unanimously that at a minimum the case would have to be sent back … that the Second Circuit got it wrong.”
Sen. Charles Schumer (D-NY), who supports Sotomayor, disagrees. “The Supreme Court set forth a new interpretation of Title VII employment discrimination law that provides a different take on the law than had been in place for 28 years,” he said on Monday, on a conference call of his own, organized with another set of legal experts.
“It doesn’t change the argument one wit that Judge Sotomayor follows the law and is judicially modest,” he said. “While the Supreme Court disagreed with the 2nd Circuit they in no way undercut Judge Sotomayor’s ruling that she followed the law and was bound to do so.”
In fact, all judges who have considered this same question have decided it the same way, say legal experts. Not only did all three judges on the Second Circuit panel that ruled in the Ricci case agree that they were bound by precedent to rule the way they did, but the normally conservative Sixth Circuit Court of Appeals, in a similar case, relied on the Second Circuit’s ruling in Ricci. And when the Second Circuit voted on whether the full court should re-hear the case, the majority voted against a re-hearing, suggesting that they agreed with the outcome of the ruling by Judge Sotomayor and her colleagues on the panel.
Before Monday, “case law was pretty settled about what employers were supposed to do,” said Primus, from the University of Michigan. “That’s why all lower courts went the same way until today. The Supreme Court wants to push the bounds more toward the colorblind side,” he said, and the Ricci decison “is clearly a step, it’s clearly a change.”
Legal experts on the left and right will continue to debate whether that change is a good or a bad one. (Groups such as the Center for American Progress, NAACP Legal Defense Fund, People for the American Way and others sharply criticized the decision as undermining the civil rights law’s protections for racial minorities, while organizations such as the Judicial Network and Republicans such as Senator Mitch McConnell profusely praised it.) But there’s little question that it was a change — and an extremely close ruling.
“The court did not suggest that the Second Circuit was outside the mainstream in its ruling,” said Schumer. “It’s the Supreme Court’s prerogative to issue final and new guidance on what the law means. But it’s the second circuit’s role to follow existing precedent.”
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