Yesterday the Supreme Court handed down the final three decisions of its 2008-2009 term, one major ruling on reverse discrimination, one decided on narrow technical issues of bank regulation, and one delayed to the fall. Included is the ruling that will prove at most mild embarrassment for Supremo nominee Sonia Sotomayor.
Reverse Discrimination: Sonia Settled. By 5-4, Justice Kennedy (who authored the majority opinion) siding with the four conservative Justices, the Court reversed the Second Circuit's ruling in Ricci v. Di Stefano (93 pages), the New Haven firefighters case in which as an appeals Judge Supreme Court nominee Sonia Sotomayor voted not to even hear an appeal, despite reverse discrimination claims. (Ricci is the white firefighter applicant Frank Ricci, who filed suit to obtain the promotion the city denied him; DiStefano is New Haven Mayor Johhn DiStefano, whose rulings against Ricci and other applicants triggered the lawsuit.)
Kennedy's opinion turned on interpretation of Title VII of the 1964 Civil Rights Act, with little in the way of lower appeals court legal precedent to guide the Court. First, note two points: (1) That the ruling was made on statutory grounds obviated the need for the Court to consider Constitutional claims. (2) Such a ruling per statute also enables Congress to pass a law overruling the result.
Begin with a summary of the law (accessible to lay readers) as it stands on these kinds of cases, established by Congress in the Civil Rights Act of 1964 (Title VII of which covers employment discrimination), as interpreted and re-cast thereafter by numerous Supreme Court cases (helpfully provided in the Court's own 4-page syllabus). (1) Title VII prohibits not only intentional discrimination on the basis of race, color, religion, sex & national origin; the statute also prohibits employer practices that have a statistically "disparate impact" on members of such classes. (2) An employment practice that has such a disparate impact can be sustained if the practice is ""job-related" and ""consistent with business necessity." (3) A plaintiff can still win if he can show that (a) there is an alternative procedure that has less disparate impact on his class and (b) that such alternative satisfies an employer's "legitimate needs." (4) An employer who takes a race-conscious action that has a disparate impact must have "a strong basis in evidence" to show that otherwise it will be held liable to plaintiff.
In effect, the majority and dissenting opinions agree on the general principles in points (1) & (2). Justice Kennedy answered point (3) in the negative and point four in the affirmative; Justice Ginsburg answered point (3) in the affirmative and point (4) in the negative. Hence the 5-4 split on the Court.
Reversing and requiring a verdict of summary judgment to be reinstated means that the 5 in the majority saw no genuine issue of material fact worthy of putting the case before a jury; the dissenters thought the case should go to trial. Ed Whelan, author of NRO's Bench Memos and himself a former Supreme Court law clerk for Justice Scalia, points out that none of the 9 Justices supported Justice Sotomayor's appellate ruling that summary judgment be entered in favor of plaintiffs. (Ed's point is correct as a technical matter, but the arcana of what is legally sufficient for summary judgment will escape not only the vast majority of voters, but also nearly all reporting on the case.)
Justice Kennedy's money paragraphs are near the end of his 34-page opinion:
"On the record before us, there is no genuine dispute that
the City lacked a strong basis in evidence to believe it
would face disparate-impact liability if it certified the
examination results. In other words, there is no evidence
—let alone the required strong basis in evidence—that the
tests were flawed because they were not job-related or
because other, equally valid and less discriminatory tests
were available to the City. 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. The City’s discarding the test results was
impermissible under Title VII, and summary judgment is
appropriate for petitioners on their disparate-treatment
claim.
* * *
"The record in this litigation documents a process that, at
the outset, had the potential to produce a testing proce-
dure that was true to the promise of Title VII: No individ-
ual should face workplace discrimination based on race.
Respondents thought about promotion qualifications and
relevant experience in neutral ways. They were careful to
ensure broad racial participation in the design of the test
itself and its administration. As we have discussed at
length, the process was open and fair.
"The problem, of course, is that after the tests were
completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expecta-
tions of the candidates who had participated in the testing
process on the terms the City had established for the
promotional process. Many of the candidates had studied
for months, at considerable personal and financial ex-
pense, and thus the injury caused by the City’s reliance on
raw racial statistics at the end of the process was all the
more severe. Confronted with arguments both for and
against certifying the test results—and threats of a law-
suit either way—the City was required to make a difficult
inquiry. But its hearings produced no strong evidence of a
disparate-impact violation, and the City was not entitled
to disregard the tests based solely on the racial disparity
in the results.
"Our holding today clarifies how Title VII applies to
resolve competing expectations under the disparate-
treatment and disparate-impact provisions. If, after it
certifies the test results, the City faces a disparate-impact
suit, then in light of our holding today it should be clear
that the City would avoid disparate-impact liability based
on the strong basis in evidence that, had it not certified
the results, it would have been subject to disparate-
treatment liability."
Concurring Opinions. Justice Scalia's 3-page joined fully in the majority opinion, but noted that the ruling postpones the day of judicial reckoning in which the disparate impact laws are weighed against the Constitution's Equal Protection guarantee against use of race. He sees the two lines of jurisprudence at war. Justice Alito's 12-pager also fully concurred with the majority, and focused on Justice Ginsburg's dissenting opinion. Alito stated that the dissent omitted crucial facts which show this case to be an especially egregious case of discriminatory misconduct. Thus, Alito said, accepting the dissent's own interpretation of the legal standard would lead to the same result reached by the majority. Alito bluntly stated that no reasonable jury could find other than the the City's decision, far from being a good-faith effort to avoid possible legal liability, was motivated by "the desire to placate a politically important racial constituency." Alito's opinion notes that Mayor DiStefano had long ties to an incendiary race-baiting black preacher, whom he even appointed in 2002 to be Chairman of the Haven Board of Fire Commissioners, only to have to fire him in 2004 after the activist made racist anti-white remarks.
Dissenting Opinion. Justice Ginsburg, joined by the four Court liberal Justices, filed a 39-page dissent. She stated that the city had good cause to believe it would face legal liability and that tests used by other cities could have accomplished the city's purpose better in avoiding disparate impact liability. Ginsburg stated: "It is the Court that has chosen to short-circuit this litigation based on its pretension that the City has shown, and can show, nothing other than a statistical disparity." Ginsburg accused Alito of omitting key facts and relying upon plaintiff's evidence.
Outside Comments. George Will, without peer among non-lawyer pundits on Supreme Court matters, castigated liberal orthodoxy in a case of blatantly obvious reverse discrimination, thus preserving racial spoils:
Although New Haven's firefighters deservedly won in the Supreme Court, it is deeply depressing that they won narrowly -- 5 to 4. The egregious behavior by that city's government, in a context of racial rabble-rousing, did not seem legally suspect to even one of the court's four liberals, whose harmony seemed to reflect result-oriented rather than law-driven reasoning.
Will sees a long, hard jurisprudential slog ahead:
The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they "remedy" discrimination that no one has intended). This is the predictable price of failing to simply insist that government cannot take cognizance of race.
National Journal's superb Stuart Taylor, one of the best among lawyer pundits, is dismayed by the ruling, because Sotomayor is more radical on race than even the four liberal dissenters in the firefighters case:
But as a matter of law, the difference between the Sotomayor position and the Supreme Court dissenters' position is nonetheless important and revealing.
Both, in my view, would risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.
But while Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.
And racially disparate scores on virtually all objective tests are unfortunately the norm, not the exception. It's not hard to understand why: Studies have long showed that because of unequal educational opportunities and cultural differences, the average black high-school senior has learned no more than the average white eighth-grader -- and considerably less than the average white senior.
Of course, this would be no justification for basing promotions on test scores that have little relationship to the requirements of the job. But the New Haven exam was clearly job-related and carefully developed to insure race-neutrality, as the majority opinion of Justice Anthony Kennedy detailed.
To be sure, as Ginsburg argued, alleged imperfections in the New Haven test were attacked by black firefighters, city officials, and others after the fact. But every written and oral objective test ever devised can be similarly attacked as imperfect. If the law were as Judge Sotomayor ruled, no employer could ever safely proceed with promotions based on any test on which minorities fared badly.
The NRO editors praise the ruling, while noting that prior Court decisions, ratified by Congress, created a different discrimination law than envisioned in the original civil rights legislation:
The landmark Civil Rights Act of 1964 targeted intentional discrimination — that is, disparate treatment in employment opportunity based on race, color, religion, sex, or national origin. It did not encompass disparate-impact-discrimination theory, the notion that illegal discrimination should be inferred, even in those cases in which illicit intent cannot be discovered, if employer actions cause outcomes that are uneven by race or the other suspect categories. Disparate-impact discrimination was concocted by the Supreme Court in 1971 and, unfortunately, codified two decades later when President George H. W. Bush signed the Civil Rights Act of 1991 (over this magazine’s objections).
The act’s internal contradictions put employers in a pincer. The law mandates race-conscious remedies if disparate impact suggests discrimination, yet it also prohibits intentional discrimination in employment decisions. An employer must fear being sued both if he unintentionally discriminates and if he takes curative steps that are race-conscious.
Adding my own two cents, in one sense I identify with Justice Ginsburg's dissent: Her statement that New Haven had a well-founded fear of litigation liability if it hired the firefighters, rejected by the majority because there of the absence of "strong evidence" that the city would be held liable, is correct, in this sense: Given the hash of discrimination law created by the Supreme Court over a generation, anyone hiring whites has a well-founded fear of being sued and possibly thus held liable.
Bottom Line: Sonia Safe. The Court's ruling is at most a mild embarrassment for nominee Sonia Sotomayor. Because it was 5-4, she cannot be said to have gone so far over the line in the appeals decision in which she cast the deciding vote (7-6); the technical point that summary judgment was rejected by all 9 Justices is too arcane a legal point to be politically significant to the vast number of voters and reporters--and thus, as well, to wavering Senators. Thus its main impact will be to provide a basis for questioning her views. GOP Senators will not be able to stop her nomination based upon this, but merely highlight differences in the two parties as to judicial philosophy, thus providing an potential election issue for 2010 and beyond. Alas, per Scalia's lament, the Court is not ready to resolve the Constitutional question, best resolved by returning to the lone dissenting opinion of Justice John Marshall Harlan Sr. in the 1896 "separate but equal" ruling of Plessy v. Ferguson: "Our Constitution is color-blind." Justice-to-be Sotomayor is ultra-color conscious, so her ascension will not help.
First Amendment: Hillary Deferred. The case, Citizens United v. FEC, involved an activist Group, Citizens United, making a sharply critical film about Hillary during the 2008 Democratic primary campaign, and fighting an FEC (Federal Election Commission) ruling that the film amounted to a campaign contribution. The Court set September 9 for a pre-term special oral argument in the case. A New York Times article notes signs that the Justices are prepared to issue a broad ruling overturning prior restrictive precedents; Sotomayor's ascension replacing Souter will not change the odds. as Souter's was a free speech restrictionist vote in campaign finance cases. The March 2009 oral argument in the case (69 pages, double spaced, of which 56 are the actual argument, the other 14 case lists) offers clues that a major reversal of prior precedent might be in store. (Reading the Q&A with its numerous twists & turns leads me to conclude: "Oh what a tangled web Congress weaves, when campaign laws it ill-conceives.")
This unusual decision increases pressure to confirm Justice Sotomayor in time for her to sit as the ninth Justice in the case, David Souter having retired yesterday. Oral argument will be held in advance of the Court's 2009-2010 term, which begins the first Monday in October, falling on Oct. 5.
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