Monday, June 29, 2009

Ricci v. New Haven Roundup

1. George Will has penned an excellent evaluation of the Supreme Court's opinion in the Ricci v. New Haven case. Among other things Will notes:

"It is deeply depressing [that] they [the plaintiffs] won narrowly;"
Depressing, Will says, because the City's "Egregious conduct . . .did not seem legally suspect to even one of the court's four liberals, whose harmony seemed to reflect result-oriented rather than law-driven reasoning."

Moreover, Will highlights the Court's conclusions that:

"All the evidence demonstrates that the City rejected the test results because the higher
scoring candidates were white."

The city's criticisms of the exam "are blatantly contradicted by the record."

"[T]he City turned a blind eye to evidence supporting the exams' validity" (emphases

In other words, the language Will highlights required the conclusion, diametrically opposed to that of the court below, that no reasonable jury could find for the City and against the petitioners. (The court below, by contrast, had found that no reasonable jury could find for the petitioners.)

Will then concludes:

"The nation shall slog on, litigating through a fog of euphemisms and blurry categories (e.g., "race-conscious" actions that somehow are not racial discrimination because they
"remedy" discrimination that no one has intended). This is the predictable price of faing
to simply insist that government cannot take cognizance of race."

Here is Will's piece.

By contrast, Professor Scott Powe, at the University of Texas, has authored a piece on regarding the Ricci opinion with which I must respectfully disagree, at least in part.

Among other things, Powe attributes the result to a purely political distaste amoRepublicans for affirmative action, an odd statement given that 2 out of the 4 dissenters were Republicans. Powe does not mention the possibility that the five justices in the majority were simply faithfully following the law --- Title VII --- (which, after all, forbids discrimination based on race, including discrimination against whites, and does make by its terms make any exception for racial discrimination that furthers "affirmative action"). Nor does he consider the possibility that the dissenters, by contrast, were letting THEIR ideology influence their judgment (as George Will argues). Indeed, Powe does not seem to offer any LEGAL analysis of the competing opinions, but instead simply interprets them as one might interpret the votes or Senators or, for that matter, members of a City Council.

Powe also claims that "the court acquired a majority that appears more concerned about discrimination against whites than about racial equality in American society." This statement only makes sense, however, if one assumes that "racial equality" means throwing out a test whenever members of one or more identifiable racial groups does not do as well as, say, the Mayor of a small town had hoped. One would have thought that the American ideal of equality would have required something quite different, namely, equal opportunity for everyone to be judged by the same open and transparent criteria, as was apparently the case here, at least before the city threw out the criteria and started anew.

Finally, it is notable that Justice Ginsburg's dissent begins to veer off course even earlier than usual, this time in the second paragraph. There her opinion claims that the petitioners had no vested right to promotion. She is wrong. The City threw out the test at issue precisely because, had the City implemented the results of the test, Mr. Ricci would have been promoted to one of the open positions. Justice Ginsburg's assertion to the contrary seems to be entirely circular, resting, as it does, on her ultimate conclusion that the City was entitled to disregard the results of the test because it was not happy about the ethnicity of those who had received the top scores. Only in this (meaningless) sense did the petitioners not possess a vested right.

Finally, over at the National Journal, Stuart Taylor, whose work I admire greatly, argues that a close reasing of the various opinions shows that all 9 Justices rejected the standard that had been propounded by the court below.