Vindicated, by 11.1%

I had previously expressed my displeasure with Sotomayor's ruling in the New Haven firefighter case. I now feel vindicated by about 1/9, or 11.1%, fortunately winning is winning even if you do so only by 1 Supreme Court Justice. Sotomayor has been reversed and the white firefighters get their promotions...5 years later. Unfortunately, I feel somewhat dirty in that only the conservatives agree with me. When Thomas signs on you to your verdict you better be in the 9-0 situation or else you really need to ask yourself if you're doing the right thing here.

Before I get into the opinion, I'd just like to note the Court's position, restated for the billionth time, that it does not consider Constitutional questions if they can be avoided. To which I respond, WHY???? The Supreme Court used to function as the Court of last resort. It was accessible to anyone who was willing to take their case all the way there. Thats not the case anymore. The Supreme Court can only hear a very few cases each term, about 200 I believe, and therefore its function now is not to resolve individual disputes but to set precedent. Occassionally very important cases require Supreme Court review regardless of precedent (i.e. Bush v Gore which they TANKED). Since those cases are once a decade, I say set precedent whenever possible. Why let the district courts and appellate courts try to guess their way through? Remember, thats the alternative here. We aren't talking about judicial minimalism we're talking about passing the buck to the circuit and district courts. Why don't we want the best justices setting precedent as much as possible rather than letting the 2nd and 3rd best do more of the work?

As for Ricci, I actually like Kennedy's opinion and agree that there is no "strong basis in evidence" to conclude there was a title VII violation. The City offered no real viable alternative available for testing and the test was clearly created through a great deal of effort and expense (100k) to make sure it tested the appropriate skills. Additionally, numerous firefighters who reviewed the exam agreed it tested the appropriate skills. That doesn't leave much wiggle room here.

I also agree with Scalia (really, did I just stay that?). There is a lot of tension between Equal Protection and Title VII that is going to have to be resolved. Disparate impact has to be available as a means of showing racial discrimination (not a Scalia point, though he doesn't advocating throwing out disparate impact either) since employers are rarely so dumb as to come out and state their racism. However, it does incentivize employers to create policies that avoid disparate impact, which essentially means indirect quotas, which are unconstitutional. Allowing the affirmative defense of good faith might be an option...but I think the good faith would have to be limited to the creation of racially neutral initial standards. Any attempts, such as by New Haven, to "correct" an issue solely on the basis of not having enough qualified members of a particular race would not be good faith in my mind. You cannot say "whites did too well we need to fix this." That isn't good faith, its a quota system.

Alito goes Thomas and prepares a concurrence about issues no one else addresses. Way to be out there Alito. I guess Thomas slept through this one and Alito made sure the random was heard anyway. Good job.

My biggest issue with all of the opinions is no one addresses the bigger issue here. Disparate impact is not some magic formula arrived to from out of no where. The point is to use disparate impact to uncover covert racism. Here, New Haven spent ONE HUNDRED THOUSAND DOLLARS in an effort to develop a test that was racially neutral. It tested the exam in advance. It solicited the input of dozens of firefighters. It did everything possible, including using a 3rd party who specializes in the creation of these exams so as to eliminate any possible racism. It then threw out the exam just because it didn't like the racial makeup of those who passed. I'm sorry, this is easy. The 4 liberals get this horribly wrong. Usually I like them, they're my guys. I hated when I had to read their dissents in law school because I strongly desired it to be the majority opinion. Not here though.

The dissent spends a lot of time on past racism, the 60/40 split (written score/oral score), and the differences in experiences leading to different ways of doing the job. OK, as for past racism, its irrelevant unless indicative of covert racism here. The 60/40 split wasn't being challenged, so unless someone is alleging the collective bargaining agreement with the firefighters union is unconstitutional/illegal because of this requirement it to is irrelevant. As for the "different ways of doing the job" because of "opportunities" which "weren't available" to minority firefighters the only question is which is better. It doesn't matter why someone doesn't know the right answer...if it did then quotas or altering the test would be permissible. However, they aren't. Both efforts would be unconstitutional and illegal. The whole point to merit tests is to level the playing field and thereby promote only the most deserving. I'm sorry if a legacy of racism makes some minority candidates less qualified, I really am. However, that doesn't mean we ought to promote them over more qualified whites...especially not when lives are on the line.

I applaud New Haven for being vigilant in its fight against racism. I criticize their implementation though and am glad the Supreme Court agreed.

Madison