June 29th, 2009

Supreme Court rules on Ricci

The Supreme Court reverses the decision of the Sotomayor court on the New Haven firefighters.

I doubt this will make a difference in the Sotomayor nomination, but I think it’s the correct decision. And, as in so many of this Supreme Court’s decisions, this one came down 5-4. Isn’t it interesting how predictable most of the Justices are? Well, I guess you could call them “consistent” instead.

Here’s an excerpt:

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday.

Kennedy’s opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

37 Responses to “Supreme Court rules on Ricci

  1. gcotharn Says:

    I, also, was immediately struck by another 5-4 ideological split in the ruling. I suspect I am having a moment of weakness, of separation from God and of lack of faith, because I cannot freaking BELIEVE we have another 5-4 split along exact ideological lines. I despair for a rent nation.

    New Haven’s actions are a lesson about either cowardice or incompetence, or about political corruption, and definitely about too much law.

    I’m about to call people “black activists”, b/c “black activists” is accurate. The people were not “civil rights” activists, b/c they don’t actually give a hoot about civil rights, but rather only care about their own power and wealth. And what is an “African American” activist? Charlize Theron? So I object to “civil rights” activist in this instance, and to “African American” activist, because both phrases are deceptive.

    Here’s what really happened in New Haven:
    black activists threatened the city if they promoted only white persons to Fire Captain (and to whatever the other position was). New Haven responded in either 1) cowardly and incompetent fashion which was intended to prevent New Haven from being sued; or 2) politically corrupt fashion which was intended to insure political re-election of New Haven officials.

    Whichever of the two reasons was their true motivation, New Haven settled upon “Disparate Impact” as their excuse. New Haven could blame “Disparate Impact”(and danged near get away with it) because the United States of America is being choked to death by too much law, and “Disparate Impact” is a classic example of what is choking us.

    And, I feel a giant “Disparate Impact” rant coming on, but everyone can google for themselves. Suffice to say, EEOC and various judicial geniuses of virtue and wisdom pulled a 4/5 statistical measurement standard out of their anus, and that 4/5 standard currently enjoys the status and power of a God given human right.

    The main point is: we have enacted so much law, and such irresponsible law (ungrounded in human truth), that the law is now an accomplice to injustice. The law is supposed to be a barrier to injustice; a relief from injustice. No more. Whenever a New Haven wants to commit an injustice, a New Haven can look to the law for immediate help in doing so.

    After the travesty of SCOTUS decision re Northwest Austin Municipal Utility District #1, in which SCOTUS justices I admire effectively declared that my state of Texas is filled with more racial prejudice than their own precious communities (and, at bottom, despite their pretty attempts to cover up, that IS what SCOTUS justices declared), and that Northwest Austin Municipal Utility District #1 must therefore be financially punished(amongst other subtle punishments): I guess I am actually relieved that Ricci at least went 5-4 in the direction of justice. I was also shaken by the NW Austin Muny Util #1 decision, and immediately feared for Ricci.

  2. gcotharn Says:

    Actually, those activists in New Haven ought be called “Thieves”, and just be done with it.

  3. dane Says:

    Well for goodness sake we all know the constitution is a living breathing document that needs to be re-interpreted (read – re-written – by judges of course) from time to time.. Heaven forbid we could admit the guys who wrote this thing actually were smarter than the judges. Only thing I can say is, with the age of the constitution, if it’s put on “Obamacare” it won’t be living much longer.

  4. Mel Williams Says:

    “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

    Let’s see. A well publicized exam is given. It is scrutinized for fairness. All had equal access to it and equal chance to prepare. All who took it knew how it works – highest scores are first in line for promotion.

    One needs to torture logic to find much that is wrong or unfair with this plan.

    Fair is fair, as my old man used to say.

    I can’t for the life of me see any logic to Ginsburg’s reasoning other than the exam results conflicted with her ideology, hence her attempt at nullification.

  5. Tim P Says:

    “The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.”

    That’s a bad thing?
    Don’t we all enjoy the presumption of innocence until proven guilty?
    Shouldn’t discrimination have to be proven, the same as for example slander, and other such things are?
    Why should the standard for proving discrimination be any diferent than the standard for proving anything else in a civil court?

  6. Tim P Says:


    I just googled and I’m appalled.

    Here’s a good ink explaining it.

    From the link,
    “A good example, taken from the first US Supreme Court Title VII case on the topic: When hiring laborers, the employer required applicants to have a high school diploma. The diploma requirement screened out vastly more blacks than it did whites. Therefore, there was a disparate impact based on race, even though there was no intentional discrimination.

    The Supreme Court said that once the employees proved a significant disparate impact, the burden shifted to the employer to prove that the diploma requirement had “a manifest relationship to the employment in question.”


    Federal legislation enacted in 1991 says that if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice “is job related for the position in question and consistent with business necessity.”

    So for an example, by the reasoning of ‘disparate impact’, an employer who wants his laborers to be able to read and wright. And who uses the critereia of a HS diploma (I know, no guarantee in this day & age, but that’s a different topic) to insure that they can, is discriminating if more of one group have a HS diploma than another group who are vying for the same jobs?

    How is that the employer’s fault?
    Since when is it incumbent on the employer to prove his innocence and not the plaintiffs to prove his guilt?
    My God, have these people lost their minds?

    The scariest two things that come out of thisdecision is the fact that 4 of the SC justices bought into this hogwash and that we are on the cusp of nominating another justice who also buys into this tripe.

  7. Tim P Says:


    That’s, “I just googled disparate impact and I’m appalled.

    Here’s a good link explaining it.”


  8. T Says:

    What concerns me most is an elaboration of Sandra Day O’Connor’s statement that a wise man and a wise woman should both reach the same conclusion.

    Shouldn’t a wise liberal and a wise conservative also reach the same decision more often than not? If so, this may be evinced by the fact that all nine of the justices believed that Sotomayor’s earlier decision on the case was incorrect.

    Even with that being said, the frequent ideological divide on this or any past Supreme Court, makes it clear that SCOTUS is not the impartial arbiter of justice that we like to credit it as being. Lady Justice has had small peep-holes cut into her blindfold for many, many years.

  9. neo-neocon Says:

    The original Ricci decision was a truimph of the concept of equality of outcome over equality of opportunity. The argument is that, if there is no equality of outcome, it must be due to the fact that there is no equality of opportunity.

  10. neo-neocon Says:

    SCOTUS has never been an impartial arbiter of justice. That’s the goal, of course. But justices have always had prisms of belief though which they filter each case. That’s one of the reasons conservative justices believe in sticking as closely as possible to the original founders’ intent (of course, as they interpret it), in order to avoid stretching the law to fit current fashion.

  11. Mr. Frank Says:

    The most damning aspect of Sotomayor’s decision was it’s lack of any legal analysis or justification. She simply rejected the appeal without legal comment. In effect she was saying that white folks have no protection from discrimination and must just suck it up.

  12. gcotharn Says:

    Mr. Frank,

    I agree. I have closely read through Sotomayor’s Berkeley speech, and have analyzed it, and she is all about affirmative action: first, last, foremost, and forever. Her refusal to make any comment on Ricci was not a fluke. It was an expression of her complete commitment to affirmative action, and to disparate impact, and to anything which helps affirmative action and which helps racial and gender quotas.

    Shelby Steele:

    Judge Sotomayor is the archetypal challenger. Challengers see the moral authority that comes from their group’s historic grievance as an entitlement to immediate parity with whites — whether or not their group has actually earned this parity through development. If their group is not yet competitive with whites, the moral authority that comes from their grievance should be allowed to compensate for what they lack in development. This creates a terrible corruption in which the group’s historic grievance is allowed to count as individual merit. And so a perverse incentive is created: Weakness and victimization are rewarded over development. Better to be a troublemaker than to pursue excellence.

    Sonia Sotomayor is of the generation of minorities that came of age under the hegemony of this perverse incentive. For this generation, challenging and protesting were careerism itself.

  13. Matt Says:

    I know you disagree with Ms Sotomayor but she has had more years on the bench than any of the other justices before they were nominated. Only Souter and Alito come close.

    neo-neocon has it right “SCOTUS has never been an impartial arbiter of justice.”
    Right from the beginning the Founding Fathers could not even agree on things. When the SCOTUS challenged racial issues or gender issues over the past 100 years there was outrage among the poltical elites [and regular folks].
    That said, the rullings are not always 5 to 4.
    Just last week Justice Thomas was the lone dissenter in a case involving strip searching a 13 year old girl. For some odd reason he read the law so closely he forgot to consider who the law was affecting. So sometimes it is good not to be so blind as to see how laws affect real people. But I digress….

  14. Occam's Beard Says:

    I know you disagree with Ms Sotomayor but she has had more years on the bench than any of the other justices before they were nominated.

    Then she has no excuse for her incompetence.

  15. Occam's Beard Says:

    So sometimes it is good not to be so blind as to see how laws affect real people.

    Isn’t the statue of Lady Liberty blindfolded? Is that because she’s standing before a firing squad?

  16. Oblio Says:

    Incompetence or an ideologues vision.

    I saw CNN trying to whip up some hysteria about how obviously wrong the Ricci decision was. Do you think the Sharptons of the world will try to take it to the streets this summer?

  17. MattL Says:

    Occam’s Beard
    So are you saying you stand with Clarence Thomas on the strip search case? Even Alito, Roberts and Scalia understood that the law had overstepped common sense.
    Or take for instance Imminent domain. The law is pretty clear about taking private property when there is an interest by a corporation or a state. But common sense tells us it’s not cool to take people’s homes. Even I would side against Liberal judges on that one.

    Also calling Sotomayor incompetent is silly. You simply disagree with her position. But guess what? Four other justices agree with her and she is replacing one of them. So same old same old – but it’s not incompetence. No one on the court is incompetent. [Although Thomas comes mighty close - he is the most inexperienced also].

  18. Occam's Beard Says:

    So educate me: where is “not cool” enshrined as a principle of law?

    Sotomayor is incompetent because she issued an unsubstantiated summary judgment – reserved for situations wherein no reasonable jury, properly applying the law, could find for the non-moving party. In essence, a summary judgment is saying that there is no issue of law, that no reasonable group of people could possibly disagree. It is a statement, in essence, that this one is a no-brainer.

    The Supreme Court, no less, begged to differ with her.

    Getting an appellate ruling reversed on appeal to the Supreme Court is one thing, but getting a summary judgment reversed is outrageous. It is, on its face, a statement that the appellate court was incompetent.

  19. Oblio Says:

    Sotomayor had exactly ZERO support for her position that summary judgment in favor of the City of New Haven was appropriate. That’s what OB means by incompetent. Also not to realize that there were material Constitutional at issue that generated 93 pages of opinion, when her Appeals Court could barely generate a paragraph. Not good.

  20. Oblio Says:

    OB beat me to the punch, as usual.

  21. gcotharn Says:

    Matt and MattL (are you the same person?),

    I appreciate your commenting and sharing your opinions. Possibly, the next time, I will agree with your opinions. This time I do not.

    On the strip search case, Clarence Thomas drew a parallel to a gym teacher who observes students as they change clothes after gym class, and said the decision re the drug suspect girl was better left to adults who are on the scene, as opposed to wearing black robes. The majority said the context of the gym teacher observation vs. school principal observation was different, and constituted an invasion of privacy. I haven’t studied the case, but I don’t think, at first glance, that Clarence Thomas’ opinion was outrageous. I might or might not disagree with it, but it wasn’t outrageous.

    Sotomayor: I wrote the following:

    Were I a Senator, I would consider Judge Sotomayor the premier example of why “advise and consent” language is in the Constitution. That a Latina’s brand of judging is distinct is a disqualifying notion. That the Frank Riccis of our nation must be sacrificed is a disqualifying notion.

    I don’t believe Sotomayor is a bad person. I believe she is a bad judge. I also wrote this:

    Anecdotal evidence (here’s an example) indicates she ain’t much of a legal scholar, and is deceptive in her public utterances. Having studied her de facto stump speech, I’m of the opinion that she could not reason her way out of a paper bag.

  22. Occam's Beard Says:

    Thanks for your explication, Oblio.

    To expand a little on my earlier post, Matt, any grant of summary judgment pretty much by definition should be affirmed 9 to 0 by the Supreme Court (which doubtless would not issue certioriari in that case). If any of the Supremes could conceivably consider a material issue of law to exist, summary judgment is inappropriate.

    That was my point.

  23. Scottie Says:

    What is interesting to me, aside from the fact that the court actually ruled definitively rather than simply punting it back down to the lower court for additional review, is the fact that the 5-4 split is almost along the same lines as the Kelo case.

    You have a bare minority of justices that believe making it up as you go is acceptable.

    That kind of judicial activism is guaranteed to incite more, rather than less, social conflict.

    Anyone wanna hazard a guess how these particular Supremes – with Sotomayer – would rule should the lawsuits regarding The Won’s heavy handed manipulation of the auto industry stock holders and franchise owners make it to the USSC will go?

    At least Justice Kennedy seems to have come to his senses. If he manages to stay on this path there may be hope for at least holding the status quo for the next 3 1/2 years…..

  24. Assistant Village Idiot Says:

    MattL, spelling errors are unimportant, but using “Immanent” Domain insted of “Eminent” suggests you do not grasp the issue at some level.

    As to incompetence, Sotomayor’s incompetence is not general, but is subtly noted by the SCOTUS decision in this case. Even the justices who agreed with her eventual conclusion did not agree with her procedure. There was a minor slap-down in this.

  25. Assistant Village Idiot Says:

    New topic. On affirmative action cases, one of the accepted means of assuring that there is not disparate impact is the Four-Fifths rule. For a written test, this would mean using a cutoff score that African-Americans reached 4/5 as often as white applicants. At that cutoff score, all applicants are then put into a pool from which promotions are drawn randomly. This sounds very fair to people who 1.) think that written tests are biased against African-Americans in general, 2.) think the score differences are pretty minor anyway, and 3.) don’t know much about testing.

    To get a 4/5 cutoff score for IQ, for example – and the test in Ricci was not an IQ test, I’m just using IQ as an example people are more familiar with – you have to drop to a score of 74 before you can get to a place where African Americans get into the pool 80% as often as whites.

    74. A score of 70 is a standard cutoff for developmental disability. That is what affirmative action means in practice.

    So at one level, Sotomayor is just a mainstream liberal justice, as evidenced by the four SCOTUS votes that came to the same conclusion she did. But what mainstream liberal is in terms of affirmative action decisions is something that conservatives find insane. Indeed, most people who get what machinations are necessary to make affirmative action work think it’s insane. The problem is, those are not generally known because they are not generally reported. They are glossed over so that you will think 1.) or 2.), above. (Which means, ultimately, 3.)

    The City of New Haven, like all municipalities, was in a bind. They get sued either way, and only get to choose which they would rather be sued for. But Reverend Kimber of New Haven insured that they would not only be sued, but politically punished, and possibly have parts of the city burned down if they decided the other way. So New Haven decided, in a cowardly but perhaps circumspect fashion, to get sued by Ricci instead of accepting the test results they had paid big bucks to insure were fair.

    Municipalites are in fact one of the main battlegrounds for this conflict of values in American society: will we have affirmative action or merit? Politicians and folks of gentle speech try to assure us that there is very little conflict, and we can have both, really, and try to get us to look the other way. But when it comes to hiring firefighters, or others where skill and knowledge really matter, the secret gets out that we can’t have both. In that conflict, progressives say, okay, let’s have affirmative action, then. We have to. It goes against many centuries of American ideals to drop merit, but let’s do it. But… we’d better keep saying nice things about merit, so that it’s not obvious what’s happening.

  26. Scottie Says:

    Developmental disabilities….this explains soooo much in politics…..

  27. Occam's Beard Says:

    Excellent post, AVI.

  28. gcotharn Says:

    I agree w/Occam: “Excellent post, AVI.” Only, I really enjoy writing “Ass Vill Id”.

    And when we adopt a national standard which falls somewhere below “Excellence”: such is deadening to our soul.

    And when we adopt a national standard of “we deserve something we have not earned”: such is deadening to our soul.

  29. Mickey Dee Says:

    The Supreme Court legislates from the bench. Neocons applaud.

  30. neo-neocon Says:

    Ah yes, Mickey Dee, we all know what strict constructionists those on the Left are.

    I’m sure you’re also against the “legislating from the bench” represented by landmark decisions such as Brown vs. Board of Education and Roe v. Wade.

    Personally, I like the former, but think the latter should have been left to the states. But that’s just me; I don’t represent your bogeymen “neocons,” a bunch of people who actually hold a wide variety of opinions of the subject of judicial activism.

  31. Occam's Beard Says:

    Another larval form communist.

    When are we going to rate an imago?

  32. njcommuter Says:

    What’s interesting, and you can find this over at the Volokh Conspiracy website, is that even the dissenters agreed that it was wrong for Sotomayor’s Appellate Court to issue a summary judgement without any analysis or guidance. Of course, you have to read deeply into the dissent to find that.

    Thus Sotomayor was wrong not only on decision but on procedure. That’s a much more serious issue, and it cuts across liberal/conservative lines, UNLESS you believe that SCOTUS only exists to push your own agenda.

  33. Ariel Says:

    Actually, I see Brown v Board of Education overturning “legislation from the bench” in Plessy v. Ferguson, given that nowhere in the Constitution can “separate but equal” be found. Must have been in the penumbra. Roe v Wade may or may not exist in the 9th Amendment, I arguably think it does, but whatever happened to the 10th Amendment? I know, I know, it’s no fun for those black-robed sages to look to those two amendments (when they don’t reasonably conflict with the 14th and 15th).

    New Haven bent over backwards to make this an “equal opportunity” test. Shrinkwrapped has a good post regarding the winners as the losers complained that the test was designed so that it “favored ‘fire buffs’ who have spent their whole lives reading fire suppression manuals, and studied like maniacs for the exam.” Imagine that. Guess EIT and Professional Engineer exams need to be changed, after all we wouldn’t want the people who lived and breathed engineering actually signing off on designs and managing the teams doing the design work. I begin to wonder if I’m trapped in a novel by Rand, Orwell, Zamyatin, or Kafka. Probably Kafka.

    Mickey Dee, look up the word “bigot”. Learn the word so you’ll find your way to stop being one.

  34. Ariel Says:

    FYI, I used to be catholic about SCOTUS, but I am definitely protestant these days. Kelo settled it for me.

  35. Artfldgr Says:

    Assistant Village Idiot,
    the math you propose doesnt work, eventually that top place is full of the top performers as you select underperformers out.

    so you start with a mass of people taking the test. and out of 100, 20 are on the top… this does not mean that the underperformers are now performing higher, it just means that you created a pool where you can get the underpeformers in and then select them and still appear fair.

    so now you take the lowest 4 performers out of the pool.

    next year the same 16 take the test again, and some new of their calibre take the test.

    eventually you end up with no choice but to hire the one you dont want!!!!!!!!!!!!


    that is if you look at this with the record, and how many years they are working, eventually they ran out of low performers who performed just high enough to get over the selection line.

    taking the bottom of the top of 4/5s doesnt work unless you get a new set of people each year. and since people take the test every year for their careers (many cases), the top performers eventually push all the others out. and you get a test where none of the top performing underperformers enter the arena to be selected.

    what sotomyer wanted was to throw the results back into the bag, and hope soem of the whites would get dissillusioned and not try (given the example she was setting). when and if this then happened, there wold now be suddenly more spaced for the african firefigthers to test to the bottom of the top.

    the idea was institutional dissilllusionment would create opportunity for africans and people of color.

    and the decline in average merit and ability of the people who protect us is just a necessary cost.

    i saw this institutional dissillusionment when i went to the SBA to see if i could build my company and avail myself of such programs. their literature is gender neutral, their practice is reverse racist to the extreme. which is why you dont see any small stores and delis owned by white men in the city. they cant get free equipment, guaranteed loans, etc.

    to watch the men slowly realize all day and slowly get up and leave one by one during the course of eight hours was a life changing experience.

    all of them if you talked to them in the morning were full of hope and stuff. most were immigrants from europe and other places, just as poor as the others.

    full of happiness and such… and one by one their shoulders would collapse, and their dreams would die, and they would slowly get up during speeches and classes and try to become invisable as they left…

    welcome to america…

  36. gcotharn Says:


    Poignant story. It shows how affirmative action is a barrier to excellence and achievement. Our nation relies upon excellence and achievement to ensure our independence and freedom. Affirmative action weakens us; makes us vulnerable. And, when we achieve less, when we excel less: we actually increase human suffering amongst our own citizens. We have an innate responsibility to be excellent, to achieve, for the sake of ourselves and for the sake of our fellow human beings. Affirmative action obstructs excellence and achievement. It is an abomination.

  37. Artfldgr Says:

    Gcotharn, i agree… always did… but then again i liked a meritocracy, even if i was on the bottom.

    and apologies to AVI, i misread where he went with what he said, and so my explanation is not in opposition, but was another view over a similar way of putting it. sorry AVI… my bad…

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