On the Supreme Court and Ricci v. DiStephano

As is the custom, the people of the United States demand a sanitized, irrelevant summary of the Supreme Court decisions, and the media is delighted to offer them little more.

Ricci v. DiStephano is of especial interest, as it involves a decision from an appeals court from which a Supreme Court Justice may be appointed. The opinion of the Court differed in finding but perhaps not in substance from the leanings of the Appeals court.

The debate offered by the moronic spokespersons, principally on the radio, serves us no purpose. The actual point of contention is minuscule. Here is the meat of the matter, from the opinion:

Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action... The question, therefore, is whether the purpose to avoid disparate-impact liability excuses what otherwise would be prohibited disparate-treatment discrimination.

What is the nature of the test for the strong basis in evidence? Previous case law illustrates that

the Court held that certain government actions to remedy past racial discrimination—actions that are themselves based on race—are constitutional only where there is a “strong basis in evidence” that the remedial actions were necessary... It reasoned that “[e]videntiary support for the conclusion that remedial action is warranted becomes crucial when the remedial program is challenged in court by nonminority employees.”...Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations andqualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based onthe strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.

Justice Ginsburg objects, joined by the remainder of the minority, about the strong basis in evidence:

In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge thebetter tests used in other cities, which have yielded lessracially skewed outcomes.

Moreover, the Court tore away discretion from the municipality to make its own choices in the selection of the processes, forbidding them to discard the processes if they found them to be substantively inadequate for the City's own purposes. The Federal Standard now offered holds for all of the cities. They have no right to consider whether the disparate impact is due to substantive causes - they must now examine the Court's spoor on the matter, to know if they are permitted to be concerned.

At least Scalia, in concurrence, is honest about the fundamental underpinnings:

Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?

Instead of a more rational approach - that a municipality may be able to demonstrate that it acts in good faith in weighing the provisions of disparate impact against that of equal protection - the Court has now yet again added more judicial minutiae - "conservative legislating from the bench" in exerting Federal judicial power over municipality interests - all the while, insulting the premise from which they derive the capacity. Figures.

PS: As an aside, it is a breath of fresh air that the Court does consider and weighs its opinions in spite of the national prejudice. On the same day, the USSC reversed the Massachusetts Supreme Court in MELENDEZ-DIAZ v. MASSACHUSETTS to insist upon a more expansive interpretation of defendants' rights.

Going by the nose-count: SCALIA, J., delivered the opinion of the Court, in which STEVENS, SOUTER, THOMAS, and GINSBURG, JJ., joined. THOMAS, J., filed a concurring opinion. KENNEDY, J., filed a dissenting opinion, in which ROBERTS, C. J., and BREYER and ALITO, JJ., joined. One's prejudice would dictate that this would be a rather "statist," defendent-antagonistic ruling. It is not. This would be the sort of case which the former AG Gonzales would have a cow over. I hope he still does.

This is, most certainly, judicial activism at its finest. As Kennedy grumps in dissent,

It is remarkable that the Court so confidently disregards a century of jurisprudence. We learn now that we have misinterpreted the Confrontation Clause—hardly an arcane or seldom-used provision of the Constitution—for the first 218 years of its existence..Indeed, as JUSTICE THOMAS warned in his opinion in Davis, the Court’s approach has become “disconnected from historyand unnecessary to prevent abuse.”

The chance that a "conservative" commentator might point this out is, in fact, a snowball's chance in hell.