There is relatively little in Justice Kennedy's majority opinion that directly addresses the handling of this case by the U.S. Court of Appeals for the Second Circuit. There are, however, some interesting passages from some of the other opinions that suggest disagreement with how the Second Circuit panel resolved the case.
First, Justice Ginsburg's dissent contains an interesting footnote -- Footnote 10 -- suggesting that she and the other dissenters were prepared to vacate and remand the case as recommended by the Obama Administration's amicus brief.
10. The lower courts focused on respondents’ “intent” rather than onwhether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.This would suggest that even the Court's dissenters believed that the Second Circuit did not properly address the issues raised by the New Haven firefighters, even if they would adopt a standard that would make it difficult for the firefighters to prevail.
There's also some interesting language at the close of Justice Alito's concurrence (joined by Justices Thomas and Scalia) that I read as a subtle rebuke to Judge Sotomayor and the Second Circuit panel (which expressed sympathy to the firefighters in its per curiam opinion), as well as a rejection of an "empathy" standard for judicial decision-making.
Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision. 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.
Related Posts (on one page):
- Ricci as a Defeat for Business Interests Inflicted by "Pro-Business" Conservative Justices:
- Tidbits from Ricci on the Second Circuit's Disposition:
- Ricci and the Sotomayor Nomination:
- Ricci Reversed:
Kind of says it all, doesn't it?
Then why did Kennedy start by writing such a tearjerker of a story in order to explain the facts of the case?
That is a direct statement responsive.
Justice Ginsburg's footnote is a subtle rebuke to Sotomayor and the Second Circuit panel. Justice Alito's comment isn't subtle at all.
In other words, do your damn job.
And Alito's concurrence is unbelievable -- for all the wrong reasons. Indeed, that, even apart from the disparate treatment analysis by the majority, he would find that New Haven's actions were a "pretext" under McDonnell-Douglas because some black pastor was running around? Who had nothing to do with the selection process? And this is judging?
I give the Chief Justice credit for not joining that opinion.
It's not like Sotomayor was 60 (like Woods) and this was his only chance to appt her.
All the opinions are evidence of the difference of worldviews between those who strive for fairness objectively through a legal-reality and those who strive for fairness subjectively through some sort of case by case emotionally-based gramscian perception of reality.
Practically however, it amounted to merely an argument over burden-shifting.
And on one note, I agree with Ginsburg; the majority did "short circuit" the case by not remanding. Probably in order to buttress what they think "strong basis in evidence" should mean, without letting the lower court really shape that over this case.
Here's one aspect of Ed Whelan's take:
If Sotomayor is the best the leftists can nominate when confirmation is assured, a conservative judicial approach is sure to continue to hold significant sway in the highest court.
What I think we're doing here is conflating the question of whether New Haven might be subjected to litigation (with its attendent expenses) with the question of whether it would win it. As the Court notes, a plaintiff would have a prima facia disparate impact case against New Haven. Such a case means that a plaintiff's case, under McDonnell-Douglas, passes dismissal and gets to discovery and can be disposed of at best on summary judgment after (potentially extensive) discovery.
Thus avoiding the expenses of having to defend against the initiation and discovery stages of litigation is a legitimate and hence clearly non-pretextual reason for New Haven's action. It doesn't matter that, after paying its lawyers a lot of money, the City would ultimately prevail. Avoiding those legal fees in the first place is not a pretext. One can't pretend that lawyers cost nothing and discovery involves no inconvenience.
While I think the concurrence deeply flawed in this respect, the majority opinion doesn't share this flaw. It notes that the Ricci plaintiffs are claiming intentional discrimination rather than disparate impact. Accordingly, McDonnell-Douglas doesn't apply to their claim, and it simply doesn't matter whether or not New Haven's actions can or cannot be classified in the "pretext" box under this inapplicable analysis. All that matters is (a) whether New Haven engaged in intentional discrimination, and (b) whether it has strong evidentiary support that its actions remedy an actual pass wrong. As Justice Kennedy notes, this is a new standard, based only on the intentional discrimination issue.
Justice Alito's efforts to characterize New Haven's actions as pretextual strike me as legally flimsy and, moreover, judicially highly unwise. Affirmative action is a difficult and divisive issue. Alito's position all but characterizes New Haven's behavior, and indeed the behavior of all supporters of affirmative action, as irrational, evil, fraudulent -- putting something over on the public, a lie. One can easily resolve this case, as Justice Kennedy and the majority opinion did, in a matter that provides an appropriate standard of legal resolution, but describes matters in an even-handed way, avoids putting ones own emotional stamp on the situation, and avoids haracterizing the actions of a large segment of society that strongly disagrees with one according to ones own personal moral coode.
New Haven's actions may well have been inconsistent with the legal standard and direction set by Adarand Constructors and its progeny. But it was not lying or being pretextual about what it was doing. For several justices to take the completely legally unnecessary step of channeling its actions into a framework of pretext and fraud -- presenting the City's as a kind of dishonesty -- is, in my view, utterly unjudicial, is completely unnecessary and uncalled for, is deeply direspectful of a branch of government whose integrity the Court is required to presume, shows poor judgment and poor temperament, and tends to diminish the public's respect for the Court and its decisions. The court may think its constitutional role entitles it to operate with a certain inscrutability and lack of transparency, but if its Justices start throwing stones they may find out otherwise.
You're reading Ginsburg's FN 10 asa rebuke of the 2nd Circuit as opposed to the majority opinion? Really? Sheesh.
Justice Holmes was throwing stones one hundred years ago, and those before him as well... For example: "the 14th Amendment does not enact Mr. Herbert Spencer's Social Statics"
While I obviously agree that there should be a sense of decorum that engenders respect for the Court, this case is based solely on deeply divisive politics. no more, no less.
If anything, this just shows that Alito lacks the colorful rhetorical flourish of Scalia.
I think you are both misreading the Alito concurrence. Alito does not say that (either as a matter of law or undisputed fact) the City's reasons for not certifying the test were pretextual. Rather, he says that there is evidence in the record that could allow a reasonable jury to decide that the City's reasons were pretextual.
Notably, this is the implication of Ginsburg's footnote 10, and it was also the Obama adminstration's position.
Reader Y,
Because the metrics and weightings of the test were already stipulated to and agreed upon by both Black and White interlocutors alike, before the examination period, according to the firefighters' contract with the city, the burden shifts to the employer to demonstrate that there could be "an equally valid test, with substantially less adverse impact". To do otherwise, as the Court admitted, might very well be tantamount to racial quotas, and so its discarding requires a "substantial basis in evidence". I think Justice Kennedy and the Court erred in not correcting and reconciling this ambiguous standard to the strictures of the Equal Protection Clause -- equally valid, but toward which ends? "better" firefighters? or funnier firefighters? -- but note that New Haven, since it even stipulated in district court that it had no legal basis to impugn the validity of the tests, could not even meet this pathetically weak standard. Your wrongs with this decision have little basis in fact.
It seems to me that Sotomayor's age is part of her appeal to Obama. Nominating a solidly liberal Justice who's this side of 60 means she will be a reliable ally to liberal causes for years and years to come.
And really, now was the time for him to roll the dice while his political capital is high. Whoever his first nomination was, it was an almost certainty that they would be confirmed. Might as well swing for the fences.
your reading of alito's concurrence is a little strained. he's just making that point that, although sympathy might be advanced as a reason for the decision, it's not driving the rule.
there's language like this in court (and Court) opinions all the time - i.e. language stating that there's some equitable reason to favor an outcome but that equitable rationale is not the one on which the decisions rests.
the dissent brought up the term "sympathy," and alito responded to the term "sympathy." to make your argument, you not only have to ignore that alito was probably responding to the dissent, but also that he chose the word "sympathy" rather than "empathy."
moreover, i would find it uncharacteristic of the court, and of alito in particular, to wade into a political back-and-forth like this, with a comment like that. the justices take an equally dim view of the analytic value of the term "strict constructionist," and you don't really see them taking swipes at that concept.
as a result, i'm much more inclined to read alito's comment as a response to the dissent's remark, not as some rebuke to the administration's "empathy" principle.
Sotomayor is a "swing for the fences"???
Because the format of the test was agreed to in union negotiation. Any test with less disperate impact would have to be a test with that same format, not some other hypothetical format. And this test already was 40% oral, so that characterization is incorrect as well.
She is clearly an AA choice: while being "at" the top of her class at Princeton, she wasn't "the" top of her class. And she was "an" editor of the Yale Law Journal, not "the" editor.
You misunderstand the procedural posture of the case and misrepresent Alito's opinion. Alito did not argue for remand only because he agreed with the strong-basis-in-evidence standard. He wrote separately to say that even if the Court had accepted the standard suggested by Ginsburg (reasonable basis), it could not have affirmed the District Court's grant of summary judgment for the Defendants, which is what Ginsburg argues for (with the exception of the odd footnote 10).
Summary judgment and judgment as a matter of law are entirely different dispositions. Judgment as a matter of law was not at issue in Ricci. Moreover, neither summary judgment nor judgment as a matter of law are appropriate if there are any questions of fact. Juries--not judges--decide questions of fact.
JGR was "the" editor of Harvard Law Review.
paints issue as balance of competing interests
wild prof from Upenn paints it as activist conservatives
On the other hand, I find Ginsburg's Footnote 10 weird; it makes no sense, and she contradicts it toward the end of her dissent when she says remand would be fine with her. Isn't she supposed to say what she thinks the outcome should be?
she says is that since the Court orders summary judgment for one side, she can't recommend remand— she has to recommend summary judgement for the other side. Is there any way to make that a sensible position? I read it as an attempt to support Judge Sotomayor's result by obfuscation without Ginsburg making too much of a fool of herself by contradicting her opinion's logic.
"Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Courtis indeed appropriate, New Haven should be the prevailing party."
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