Tidbits from Ricci on the Second Circuit's Disposition:

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.

Matt P (mail):
"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."

Kind of says it all, doesn't it?
6.29.2009 11:35am
martinned (mail) (www):

But "sympathy" is not what petitioners have a right to demand.

Then why did Kennedy start by writing such a tearjerker of a story in order to explain the facts of the case?

In 2003, 118 New Haven firefighters took examinations to qualify for promotion to the rank of lieutenant or captain. Promotion examinations in New Haven (or City) were infrequent, so the stakes were high. The results would determine which firefighters would be considered for promotions during the next two years, and the order in which they would be considered. Many firefighters studied for months, at considerable personal and financial cost.
6.29.2009 11:47am
rosetta's stones:
Dude, that may or may not be a rebuke, but whatever it is, it sure ain't subtle. Those guys read the newspapers, and may be even foolish enough to read this blog and all the clamor over this empathy thing.

That is a direct statement responsive.
6.29.2009 11:48am
John Thacker (mail):
Yeah, that's not subtle.

Justice Ginsburg's footnote is a subtle rebuke to Sotomayor and the Second Circuit panel. Justice Alito's comment isn't subtle at all.
6.29.2009 11:58am
stan (mail):
Whack! Take that.

In other words, do your damn job.
6.29.2009 12:13pm
Greg Dodge:
I don't read so much into Ginsberg's footnotes; strikes me that you're looking for confirmation of something that isn't there. Indeed, her opinion goes out of its way to justify what went on, including under Circuit law. To read her dissent as rebuking Sotomayor specifically is to seek confirmation of preexisting views.

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.
6.29.2009 12:13pm
ruuffles (mail) (www):
I still can't fathom why Obama decided to roll the dice. Kennedy and Roberts could have joined the Alito concurrence and made it part of the majority decision.

It's not like Sotomayor was 60 (like Woods) and this was his only chance to appt her.
6.29.2009 12:13pm
Tony Tutins (mail):
The fairest solution would be to ban the per curiam opinion.
6.29.2009 12:18pm
SuperSkeptic (mail):
Alito's whole concurrence was strikingly political in tone.

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.
6.29.2009 12:18pm
Definitely a rebuke of Obama and the "empathy" meme. He purports to rebuke the dissent, but it actually makes no sense in that context. The dissent essentially wrote, "While we have sympathy for the plaintiffs, as a matter of law we can't rule in their favor." And Alito's reply is, "You may have sympathy, but that has nothing to do with the Court's role." So clearly this was just an excuse to get a dig in there.
6.29.2009 12:19pm
Jonathan, you've got a neat sort of "nothing to see here, move along now..." sort of take on this case.

Here's one aspect of Ed Whelan's take:

Judge Sotomayor thought it appropriate to use an unpublished summary order to dispose of the claims of the New Haven firefighters in Ricci v. DeStefano. Today the Supreme Court issued 93 pages of opinions in the case that Sotomayor acted to bury.

Further, although there is a sharp 5-4 divide among the justices, not a single justice thought that Judge Sotomayor acted correctly in granting summary judgment for the City of New Haven.
6.29.2009 12:22pm
If this sort of petty griping is the best the wingnuts can come up with, Sotomayor's sure to be confirmed.
6.29.2009 12:24pm
MRSquared (mail):
If this sort of petty griping is the best the wingnuts can come up with, Sotomayor's sure to be confirmed.

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.
6.29.2009 12:43pm
Anderson (mail):
What's LaGuardia's old line? "When I make a mistake, it's a beaut"?
6.29.2009 12:54pm
I don't see a rebuke of the whole empathy thing, unless you think sympathy and empathy are the same thing?
6.29.2009 12:55pm
In all candor, I find Alito's (and Scalia's) characterization of New Haven's decision as pretextual difficult to square with previous Supreme Court precedent indication that the question for a court in determining pretext is not whether the employer's stated reason is reasonable, but simply whether it is honest.

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.
6.29.2009 12:57pm
BTD (mail):
You gotta be kidding me.

You're reading Ginsburg's FN 10 asa rebuke of the 2nd Circuit as opposed to the majority opinion? Really? Sheesh.
6.29.2009 1:05pm
I think the better course would have been to remand to the District Court to review under the "strong basis in evidence" standard. The majority made a number of decisions about the character and weight of New Haven's evidence under that standard that strikes me as inappropriate for the Supreme Court to be making without the benefit of a prior opinion by the lower courts. One example was how quick the Court was to dismiss New Haven's claim that doing the test differently, for example by having an oral component rather than an entirely written exam, could result in an equally appropriate test. How can the Court be so sure about things like this?
6.29.2009 1:06pm
SuperSkeptic (mail):
@ ReaderY "Start" throwing stones...?

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.
6.29.2009 1:10pm
JP_ (mail):
Greg Dodge and ReaderY:

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.
6.29.2009 1:27pm
Was whether the action violated Equal Protection at issue? Or was it based solely on a violation of Title VII?
6.29.2009 1:31pm
Cato The Elder (mail):

One example was how quick the Court was to dismiss New Haven's claim that doing the test differently, for example by having an oral component rather than an entirely written exam, could result in an equally appropriate test. How can the Court be so sure about things like this?

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.
6.29.2009 1:41pm
SuperSkeptic (mail):
Equal Protection was raised by the Petitioners as an issue, but not resolved by the Court who conveniently (for now) resolved the case merely on the statutory claim to avoid the constitutional issue
6.29.2009 1:41pm

I still can't fathom why Obama decided to roll the dice. Kennedy and Roberts could have joined the Alito concurrence and made it part of the majority decision.

It's not like Sotomayor was 60 (like Woods) and this was his only chance to appt her.

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.
6.29.2009 1:50pm
Kovarsky (mail):

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.
6.29.2009 1:57pm
Greg Dodge:
JP_: Seems a distinction without a difference. Alito argues that pretext would be an independent ground for the majority's decision; if it was an independent ground (he never argues for a remand on the question), then that is the same as a judgment as a matter of law. Rulings on summary judgment are typically referred to as "judgment as a matter of law," though the actual inquiry requires some delving into of the facts. Alito doesn't say it's a good question and we ought to remand here. He says there is plenty of evidence to support a ruling in favor of the plaintiffs even if you didn't reach the ground the majority relied on.
6.29.2009 1:59pm
Cato The Elder (mail):
I imagine what will happen from this decision, is that other cities are going to shift to flim-flam tests, testing irrelevant nonsense like musical ability and speaking skills, and many of their racial advocates will tenuously try to draw a connection between them and the contentious civil service posts in dispute. These are the aspects of the individual "KSAs" I/O psychologists frequently reference in their amici briefs in such cases. In general most cities, previous to this decision, really were trying their hardest to create the best tests possible, spending hundreds of thousands of dollars only to continually run into disparate impact lawsuits (the city of Memphis is now being sued for the fourth time in 10 years). However, there is no requirement for such a good-faith basis in the sort of ex-ante race consciousness that the Court explicitly endorsed in Kennedy's binding opinion; thusly, I predict that we can expect more hokery and outright corruption. Things will come to a head in due time once the farcical nature of the proceedings comes to light, and Kennedy will have to "man up" and write a real opinion when that time comes.
6.29.2009 2:03pm
For such a reserved and calm guy Alito sure can be snarky. This is second concurrence this year that gets critical of dissenters and/or lower courts. Maybe there really is a Scalito wolf in those meek skins.
6.29.2009 2:28pm
Anderson (mail):
Might as well swing for the fences.

Sotomayor is a "swing for the fences"???
6.29.2009 2:55pm
Soronel Haetir (mail):

for example by having an oral component rather than an entirely written exam, could result in an equally appropriate test. How can the Court be so sure

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.
6.29.2009 3:03pm
Tony Tutins (mail):

Sotomayor is a "swing for the fences"???

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.
6.29.2009 3:07pm
Anderson (mail):
Hm. How many members of the current Court were "the" editors of their schools' law journals?
6.29.2009 4:28pm
JP_ (mail):
Greg Dodge,

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.
6.29.2009 5:15pm

JGR was "the" editor of Harvard Law Review.
6.29.2009 5:46pm
SuperSkeptic (mail):
Well done Adler on newshour

paints issue as balance of competing interests

wild prof from Upenn paints it as activist conservatives
6.29.2009 6:28pm
martinned (mail) (www):
@LTR: Actually, he was the managing editor, i.e. the no. 2. Obama was the no. 1 (in another year).
6.30.2009 4:51am
Eric Rasmusen (mail) (www):
As commentor _JP says, Alito's point is not that the fear of being sued was clearly a pretext— tho I find his evidence clear and appalling— but that a jury might reasonably find that fear of being sued was a pretext. That's a pretty weak standard, yet the 2nd Circuit and Ginsburg thought it couldn't be met— presumably, that if a jury found that the employer dumped the test for political reasons, not legal fears, that finding would be so ridiculously unrealistic that a judge could disregard it.

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."
6.30.2009 11:39am

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