Monday, June 29, 2009

Surprise, Surprise: Supreme Court Reverses Ricci in 5-4 Ruling Written by Justice Kennedy

As I predicted, the Supreme Court reversed the Second Circuit ruling with a 5-4 decision authored by Justice Kennedy.

Here is my prior analysis of the case: WWKD: Ricci v. DeStefano Will Likely Turn on Justice Kennedy.

The SCOTUS blog has a good analysis of the the judicial politics surrounding the ruling: What Ricci says about the Supreme Court’s views of Judge Sotomayor SCOTUSblog.

What The Decision Means Politically
It is difficult to disagree with the White House statement (and the SCOTUS analysis), which says that the opinion proves that Judge Sotomayor is not biased.

As I stated in my prior analysis, even with the 5-4 reversal, 12 judges have voted against the firefighters, while 11 voted for them. This definitely shows that the issue was unsettled and that Second Circuit ruling was within the mainstream of legal thought (on a highly divisive issue).

I suspect that her opponents, however, will not let it go. Despite the fact that 11 other judges, including 4 who sit on the Supreme Court, have ruled the same way, they will still make noise about the ruling proving that she is unqualified for the Supreme Court. Ultimately, their complaints will have no effect.


Anonymous said...

All 9 Justices would have remanded Ricci to allow the plaintifs to show the pretextual nature of the New Haven's decision. The four dissenters merely disagreed with the majoritie's reading of the law. So the decision is not really 5-4 as you suggest but 9-0. All Justices felt the the Second Distict's was wrong.

Darren Lenard Hutchinson said...

Hi, Anonymous. The DISSENTERS could have "dissented in part, concurred in the judgment" if they really wanted a remand. But they simply dissented.

Anonymous said...

Darren, I guess the dissenter could have concurred in the judgment, but they nevertheless did say that they would not oppose the remand. See for example Jusice Ginsburg's opinion.

Kansas City said...


No way the dissenters would have "concurred in the judgment" if they wanted remand. The majority opinion rendered judgment in favor of the petitioner plaintiffs on the merits (an extraordinary result in a Supreme Cout case). Concurring in the judgment would have meant the dissenters agreed judgment should be entered in favor of the plaintiffs, which they obviously did not conclude.

Justice Ginsburg tried to obscure the issue, but she and the four dissenters disagreed with the reasoning of the Sontamayer panel.

So Anon is correct that it was 9 - 0 in the sense that all justices disagreed with Sontamayer.

Also, I think it is at best misleading for you to repeatedly argue that 12 judges agreed with Sontamayer. The Superme Court was 9 to 0 against Sotamayer's reasoning. I have not read the ruling of the 7 judges who denied rehearing in banc, but I doubt that the ones other than Sotamayer and her panel colleagues expressed agreement with Sotamayer - I assume they just denied rehearing in banc.

I still think Sotamayer is qualified for the Supreme Court. The fact that she is a left wing liberal simply goes with the fact that President Obama won the election.

Anonymous said...

Dear Mr. Hutchinson: Why not provide facts about the case instead of repeating the conventional wisdom? Let me help you: here . I am astonished at linking to this series because a)it's in SLATE and b) is coauthored by Emily Bazelon. Neither circumstance is usally a good sign of truth. To my amazement, this series, while plainly contra Ricci, manages to give the background of the case, and make me doubt that the New Haven test was the last, best word on the candidates's qualifications. Trouble is, the real parties opposing Ricci bet that the courts would sustain them. SS did her best to stack the deck against Ricci. Don't take my word for it; read this . Again, astonishment, another SLATE article by the odious Bazelon that brings up awkward questions for SS supporters:

What was SS's record on the case by the time it reached the Supreme Court:

The case had been tried in federal district court. Ricci had lost and appealed. The 2nd Circuit, SS participating, dismissed the case in an unpublished, unsigned order. Why?

a) SS&Co could have thought this case was a peewee, not worth their time to consider. If so, this was a serious error. This was a weighty case, and if SS couldn't realize this, she's not fit to be an appellate judge, let alone a Justice.

This dismissal brought a lot of squawking, and on reconsideration SS&Co tried again. Laboring ferociously, SS's panel brought forth a ONE PARAGRAPH opinion, repeating what the district court judge had ruled.

b) Is SS too lazy to be bothered to think through the issues and write an opinion grappling with them? If so, she's not fit.

The one paragraph opinion prompted a squawk from her colleague Jose Cabranes that SS&Co weren't treating this case with the effort it deserved, and, as you would doubtless tell me if the situation were reversed, Cabranes is a Clinton appointee i.e. a liberal, i.e. acting against his own liberal interest, i.e. his opinion is worth far more than the wise Latina trying to win one for social justice.

c) SS&Co were fed up, figuring that this case was gonna go to the top, so who cares what we lowly circuit judges write about it? There's something to this. It is a chore to work when you know your efforts are going to be reviewed and more likely than not, reversed. But adults must be able to rise above this exasperation, and even take lumps sometimes. If SS can't rise above this, she's not fit ice.

I don't believe a) b) or c). I think SS has more smarts than a or b imply, and certainly has enough clerks to do the work that b) implies. Nor would such a zealous careerist choose c. What then?

d) SS&Co tried to bury the case, fearing that no matter how they ruled, the case would go to the Supreme Court where "their" side, the Social Justice Down With The Man side, would lose. This was a high risk strategy. If it failed and the Supremes took it, Social Justice would take a bullet all across the land. So it proved. I hope the GOP Senators call Judge Cabranes to testify at SS's confirmation hearings. It would be amusing to have Cabranes show the calluses on his eardrums from SS's shrieks of rage when this Traitor to Social Justice (TM) insisted that appellate court judges should write opinions with more than a paragraph's worth of prejudice.

As you say, SS is going to be confirmed barring the most improbable accidents, just as the former Ku Kluxer, Hugo Black, successfully danced around his past to gain confirmation to the Supreme Court in 1937. But SS won't be confirmed because of his brilliance, or her energy. She will be confirmed because the American electorate was fed up with Geo. W. in November 2008, and wanted the anti-Bush. They thought they got him in The One, who thinks SS is one who will vote for Social Justice. Elections have consequences. That is why SS will don the robes of James Clark McReynolds.

Sincerely yours,
Gregory Koster
(not of CUNY)

Kansas City said...

Judge Sotamayer's work on this case was an embarassment. As a "product of affirmative action," she did not give the plaintiffs a fair shot. Now, she has suffered the embarrassment among people who understand the case of not only having none of the Supreme Court justices agree with her, but also suffered the almost unheard of result of having her order affirming summary judgment for the employer reversed AND judgment entered for the employer. In the world of appeals to the Supreme Court, you do not get any worse a result than that.

Before Darren or someone seeks to argue that four Supreme Court justices (or 12 total justices agreed with her), you should read Stuart Taylor's piece in the National Journal, who is generally sympathetic to Sotamayer.

It starts as follows:

"The Supreme Court's predictable 5-4 vote to reverse the decision by Judge Sonia Sotamayor and two federal appeals court colleagues against 17 white (and one Hispanic) plaintiffs in the now-famous New Haven, Conn., firefighters decision does not by itself prove that the Sotamayor position was unreasonable.

After all, it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee's ruling to the contrary.

What's more striking is that the court was unanimous in rejecting the Sotamayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.

This position is so hard to defend, in my view, that I hazarded a prediction in my June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotamayor-endorsed... opinion" by U.S. District Judge Janet Arterton.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotamayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotamayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor John DeStefano's political base."

Darren Lenard Hutchinson said...

Kansas: Thanks for pointing out my misstatement. Chalk it up to faulty memory. Nonetheless, because the majority held on the merits, the dissenters only had one option: dissent.

I also agree with you that Sotomayor is qualified for the bench. I imagine she will be confirmed. The media is already dropping Ricci coverage.

Question: didn't you previously believe there was a triable issue of fact? If so, what do you think of the majority ruling?

Greg -- You know I usually go "essay-to-essay" with you, but I do not have the time to do so today. I discussed this case so much prior to the ruling, that I believe we have exhausted the arguments. It went as most people predicted, and it will not impact the confirmation hearings. Accordingly, I am trying to move to other terrain.

Kansas City said...

I assumed there had to be a triable issue of fact, and did not even consider the possibility that the Supreme Court would take the extraordinary step of granting judgment for the petitioning plaintiffs who had lost on summary judgment. As you know, a reversal of summary judgment would almost always result in a remand for trial.

I don't now enough about the record for an informed opinion about whether the direction of judgment was warranted, but my reaction is: (1) that the City's evidence must have been awfully weak (it seems like Justice Kennedy treated it with disdain); and (2) that entering judgment for the plaintiffs probably was a reach. It really is an embarassing result for Sotamayer, but I think that she (and her two colleagues) just messed up in reaching to uphold a very liberal perspective and, I believe, trying to do it in a way that stayed under the radar and was not noticed.

I know you don't like to hear it, but a "product of affirmative action" never should have been deciding this case.

Even the liberal supreme court justices would have reversed summary judgment.

gcotharn said...

From memory: New Haven only objected to racial aspects of two questions on the test.
1) I seem to recall reading the questions, and thinking at the time that claiming the questions were racially biased was an incredible stretch, and was, frankly: bullshit.
2) even if all black test takers were given credit for correctly answering those two questions, it would still be the case that zero black test takers would've been immediately promoted.

And that was it. New Haven did not proffer evidence of racial bias beyond pointing to two questions on a test whose total number of questions was in the 130-150 range, as best I remember.

Kansas City said...

The weakness of the City's case was no doubt fully explained to Sotamayer on appeal and she chose to look the other way and try to bury the case. I think she will be a reliable liberal vote on the court, but not much of a force (although on today's court, no one is really a force -- in important cases, it is mostly a matter of them voting their judicial philosophy -- she will continue that sad state of affairs).

Darren Lenard Hutchinson said...

Clarence Thomas is a "product of affirmative action," but he heard the case. He has even written about how his experiences with affirmative action and "white liberals" inform his views about race -- which help shape policy on race for the entire nation. Do you object to this too?

PS: It's not that I do not like "to hear" that argument. I just think it has no basis in law, and that it inexplicably locates possible bias in beneficiaries of affirmative action, but not those who were excluded from it. And, with your silence on Thomas, it seems that the only bias centers around beneficiaries of affirmative action who have not expressed a hatred of it yet.

Kansas City said...


You seek to avoid the simple issue of whether it is fair to the plaintiffs [not a legal basis for recusal] for the product of affirmative action Sotamayer to rule on this case. Of course, it is a terrible draw of a judge for them and her actions suggest that she was biased against them because of her political/personal preference for affirmative action.

As to Thomas, I believe he disputes it, but I think he was the beneficiary of affirmative action (at least in being selected for the court). And yes, of course, because of his expressed opposition to affirmative action, the City would not be happy with him as one of the justices.

But it is a somewhat apple and orange comparison. Sotamayer is personally grateful for affirmative action in giving her a benefit. It would be like a challenge to the lottery being heard by someone who had won $50 Million dollars in the lottery. Thomas is hostile toward affirmative action, even though he benefited from it.

By the way, your comment shows your desire for an activist court -- "help shape policy on race fo the entire nation." It may well be true, but it is not what the court is supposed to do.

Darren Lenard Hutchinson said...

KC -- We had a monster thread on this issue. Why pretend that I "seek to avoid" the question? Recusal is a legal concept; reframing it as "fairness" does not change things. Either way, I reach the same conclusion.

Whether or not Thomas admits being the beneficiary of affirmative action does not matter -- because he undoubtedly did. Unlike Thomas, however, I do not believe that implies anything about his intellect. Unlike you,I do not believe that makes him a partisan and unable to decide these cases fairly. Thomas, however, is slanted on this issue due to his own personal reactions, which he has described at length in his book. All of his animosity towards "white liberals" who support affirmative action shines through in his opinions.

I do not recall Sotomayor saying she was "grateful" for affirmative action -- and even if she did, Thomas said the concept angers him deeply. Don't you consider that an emotional response? Scalia called it a disease -- another emotional response. And Alito joined an alumni group formed to protest affirmative action at Princeton. Yet, you still think it is "fair" for these individuals (but not Sotomayor) to rule on affirmative action cases. I find your dismissal of the comparisons highly unpersuasive. If Sotomayor's mere acknowledgement that she benefitted from affirmative action raises questions about her fairness, then people who DID NOT benefit from it, and who openly oppose it -- to the point of calling it a disease -- have fairness issues too.

Finally you are distorting my comment about policy. Earlier, I post an essay that describes how judges shape "policy." See: Earth to Orrin Hatch: Even Conservative Judges Make Policy!. Take a look.

Applying the same logic, the Ricci decision shapes policy. Saying that affirmative action hurts blacks (even though most blacks disagree) and then using that "feeling" as the basis for applying strict scrutiny undoubtedly shapes policy. Strict scrutiny has absolutely shaped affirmative action policy. Strict scrutiny is, by definition, activist. Thomas is using his own personal reactions to affirmative action to reach decisions in cases that impact policy. And I'm the activist? Please.....

Kansas City said...

Here's a great video of Obama commenting on the decision and affirmative action. The guy is a master of saying nothing, but sounding like he is sincerely something smart and significant. Here, he implies that the use of affirmative action should be lessened, but speaks in code so his liberal supporters know that he doesn't mean anything by it. It is such a shame. He should seize the moment and declare his support for affirmative action based on socio economic background without regard to race and he could more the country forward on race issues.

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