It's a step forward, but I have some concerns about how lower courts are actually going to interpret and enforce this. Does the decision in fact create a precedent that says that disparate impact is, in itself, not grounds for a lawsuit? If lower courts see it that way, great. But if they don't, then until there is either new legislation or another Supreme decision to clarify things, employers are in a catch-22: they are going to get sued no matter what they do. If New Haven goes ahead with promotions based on the test results, can they be sued by the minority firefighters who did poorly on the test? It's not clear to me.

Quoting the people at Scotusblog, who - unlike the WSJ editorial page and Andy McCarthy - are not paid to oppose Democrats:

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.

And here is another analysis from Walter Dellinger at Slate:

Moreover, reading the opinions makes clear that the court's five-justice majority is adopting a new standard. Justice Kennedy's opinion for the court says, "For the foregoing reasons, we adopt the strong-basis-in-evidence-standard … to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." Both the majority and dissenting opinions seem to agree that this represents the adoption of a new standard. (Justice Ginsburg, speaking in dissent from the bench, called it "novel.") As a court of appeals judge, Sotomayor was obligated to apply the law at the time of her decision. She did so.

I've said it before. Sotomayor has been a judge for a long time. If this case is the biggest black mark against her, she'll be confirmed easily.

I believe your suspicions are correct, Cousin Dave. "Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions" This leaves open the possibility that under other circumstances, an employer's reliance on race to the detriment of those of an incorrect race could still be legal. If you're looking for a decision that will finally put affirmative action in the grave where it belongs, this is not it.

Ginsburg's dissent was even more revolting than this article makes it out to be. "The white firefighters who scored high on New Haven's promotional exams understandably attract this court's sympathy. But they had no vested right to promotion." Try picturing the scene in the Dean's office at Columbia Law School years ago, when it was time for Ms Ginsburg to get her Bachelor of Law degree: "We're sorry, Ruth, but you're white. No black law students passed their exams this year, so we can't give you your LL. B. We know you studied very hard for it, but you have no vested right to graduation. We're sure you'll understand. Good-bye"

Here is one interesting take:

No one should have had a case at all, actually. No one had been promoted because of the impending lawsuit. So no one had been discriminated against.

Given that no one had been promoted and no one had been denied promotion, it's very hard to see how the firefighters who brought suit were able to establish the very first element of a Title VII action: the existence of an "adverse employment action."

http://www.slate.com/id/2220927/entry/2221839/

Great article.

Judges legislate from the bench all the time due to their "feelings."

Thats not their job. Their job is to make sure the law is followed- not legislate from the bench.

However, you cannot sue a judge even if they make the worst decision ever and it costs you a ton of money.

If Judges had to carry malpractice insurance and were successfully sued a couple of times there would be no more legislating from the bench!

Cheezburg, I think the fact that New Haven announced that they were throwing out the results of the test, with the implication that those who earned promotions would not be receiving them, in itself constituted an adverse employment action. Couple that with the explicit statement that the reason for doing so was racially motivated, and there's plenty of grounds for a Title VII action. Do the usual sanity test that always should apply in this situation: what if the races were reversed? You betcha there'd be cause. No court in the nation would stand in the way.

We don't have the "rule of law", we have the rule of men/women. Our lives turn on what theory pops into their heads each day.

Of course, we can sigh relief when the Court produces a rational decision, in this case, however slight the effect.

If "the law" meant anything, then nine intelligent and learned justices would almost always come to the same decision, not 5-4 votes on ideology.

When that split changes sides, we will suddenly see that all of legal precedent supports submerging the individual to the needs of the group, whichever group is more determined to gain benefits from the state, in support of whichever politicians and party are willing to hand them out.

How do you like the world that our government is shaping for us?

-------------------------
A Liberal Judge
There is a list at the link for reviewing Sotomayor's history.
====
Sotomayor: [edited]

I had more problems with the low-grade crimes such as shoplifting, prostitution, and minor assault cases. In those cases you were dealing with socio-economic crimes that could be the product of the environment and poverty. But, no matter how liberal I am, I’m still outraged by crimes of violence. Regardless of whether I can sympathize with the causes that lead these individuals to do these crimes, the effects are outrageous.
====

College is an Expensive IQ Test

====
James Taranto of the Wall Street Journal: [edited]

Most professional jobs require basic intellectual aptitude. Since the 1970s the Court has developed a body of law that prevents employers from directly screening for aptitude.

In Griggs v. Duke Power Co. (1971) a black coal miner claimed discrimination because his employer required a high-school diploma and an intelligence test as prerequisites for promotion. The court ruled 8-0 in the miner's favor. "Good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups," Chief Justice Warren Burger wrote.

This became known as the "disparate impact" test, and it applies only in employment law. Colleges and universities may use aptitude tests. Elite institutions lean heavily on exams such as the SAT in deciding whom to admit.

For a prospective employee, a college degree is a very expensive way of showing that he has, in effect, passed an IQ test.
==========

If "the law" meant anything, then nine intelligent and learned justices would almost always come to the same decision, not 5-4 votes on ideology.

You're both right - in general - and wrong - on the particulars. There are many cases in which all 9 of the Supremes would agree; those cases just never make it to their docket.

Things get to the Supreme Court because the questions are hard and "the law" is not clear. That's why they take the cases they do. Different circuits may have different precedents on things. Statues are frequently worded poorly. It's often difficult to tell how a particular statute or court precedent should apply to the particular facts in a given case. Intelligent and learned people may have differing opinions about how the law and our Constitution are to be interpreted.

"Things get to the Supreme Court because the questions are hard and "the law" is not clear."

The appalling thing to me, as a lifelong technician and systems operator, is that the question is made out to be "hard".

The test doesn't prevent you from making a living any more than a blog owner's censorship abridges your freedom of speech.

The promotion of "diversity" (in quotes because it applies to race and nothing else) over competency is clearly nonsense, as demonstrated by any performance-based activity. Imagine a test for membership in the NBA which didn't require you to shoot a basket.

If you can't pass a test to be a firefighter, you should look into another line of work. There are professions in which not knowing what you are doing kills people. I don't want you showing up at my house going, "Duhh..."!

The appalling thing to me, as a lifelong technician and systems operator, is that the question is made out to be "hard".

Hard in the legal sense, Radwaste, not necessarily in the "achieve the best objective outcome" sense. Though I can imagine why this pains the engineering mind.

If you can't pass a test to be a firefighter, you should look into another line of work.

Interesting. I wonder if anyone developing this written test determined whether it correlated well with actual on the job performance.

Cheez, Walter Dellinger is wrong. Sotomayor failed to do anything even resembling analysis. She wanted to make the case go away, so she made it as bland as she could to avoid scrutiny.

The District Court screwed up. The law is clear, an "adverse outcome" that can be justified is not in violation of Title VII. New Haven wasn't interested in "justifying" the outcome. They very simply wanted black men promoted. When the test failed to get the politically-desired result, they tossed it and hoped that everyone would walk away without holding a grudge.

New Haven fucked up. The District Court (I'm assuming for the New Haven district) fucked up. The Second Circuit fucked up. And if the Supremes had gone Ginsburg's way, THEY would have fucked up.

Ginsburg herself admitted as much. She feels that "sympathy" is all Ricci were entitled to, because they were sacrificed for the greater good.

Well, if that's the case, I say Fuck the Greater Good.

Sotomayor failed to do anything even resembling analysis.

Because of the way this decision was handed down, we have no idea what she did or thought or what justified the decision. Unsigned, per curiam opinion. Means that she and two other judges in that appellate circuit thought the law was so settled that there was no reason to go into detail. And if Alito had not replaced O'Connor, that decision would have been upheld! Instead, she's one of three judges on the losing side of a 5-4 opinion. Happens. Hardly not mainstream.

And ultimately, it doesn't mean squat. She's still getting confirmed. And the the more conservatives attack her, the better from a Democratic political standpoint. So far, I'm unimpressed with Obama from a policy perspective (except for his decision not to get all caught up in the Iranian election), but this was shrewd politics.

Actually, Cheez, not getting "involved" in the Iranian election will come to be known as "The beginning of the end of the era of Obama."

He has now been shown before all our enemies to be completely spineless. The Iranians were intentionally misquoting him and blaming him for fomenting dissent. A real man would have puffed out his chest and gone for the throat. Obama went and hid behind Mommy's skirt.

Sotomayor is not going to be confirmed. All nine Justices called her out in their opinions. She's been shown to be completely lacking in Judicial bearing. She's damaged goods. Standing by her only hastens Obama's political demise.

Between Waxman-Markey, and the Kennedy health bill, Obama's a one-termer at best. Forcing Cap and Trade through without having a physical bill to read, a 300 page amendment attached without being read, debated, or printed, and attacking Republicans for opposing it may have doomed the Democrats to a complete electoral wipeout in 2010.

Overreach leads to schadenfraude. And I mean to gloat.

It was a good decision alright, and not surprisingly the weasels at NOW dont like it - too much fairness for their taste i guess.

Off topic, but in case you dont already know, you have at least one feminist weirdo following you on twitter. MzPetuniaPigg (aka Glennscult) is no doubt keeping an eye out for views that do not suit her feminist agenda agenda so that she can vilify you on her blog as she has been doing to the men at glennsacks.com for over a year. I came across your name on her "following" list after she tried following me and my men's rights blog Porky's Place.

I knew that Iran comment was good Brian-bait :)

Obama went and hid behind Mommy's skirt.

No, he realized that if he expressed any support for the Mousavi people, it would be used as propaganda against them. Plus, he knows that Ahmadinejad would probably win, and he still needs leverage there. I'd say, it's foreign policy at the smart level of Bush I. Neocons may love his son, but the first Bush (mostly) knew when our best interests were served by staying out of others' business.

Standing by her only hastens Obama's political demise.

Totally! What was I thinking?

Certainly there are data that do not suggest the public has bought into the right's narrative:

http://yglesias.thinkprogress.org/archives/2009/06/sotomayor-more-popular-than-roberts-alito.php

Between Waxman-Markey, and the Kennedy health bill, Obama's a one-termer at best.

I'll take that, cause once we get health care bill and an anti-global warming bill passed, they'll be as hard to get rid of as Medicare and the Clean Air Act.

Oh, and by the way: 60. It's getting harder and harder to confirm nominees to vote against the Roberts-Alito-Thomas-Scalia block or pass that health care and environmental legislation you hate.

As I understand things, not that much changed. If this was to happen again but this time the fire department looked at the test and found that it was racist for non-job related things they could toss it out. The liability here came from the fact they didn't look at the test, just the results and so tossed the test results and decieded not to promote anyone. This same fire department is still possibly liable if one of the blacks where to show the test is racial biased.

I do not understand the Ginzburg opinion - it seems like she wanted the issue to go back to a lower court to investigate that if FD had looked into the test if they could have thrown it out for bias. That really seems to ignore the core of the question. I hope I am mis-understanding her position.

It does look bad for the nominee to have none of the judges opinions agree with her reasoning. I saw it claimed somewhere that she has one of the highest rates of reversal by higher courts.

Ahhh, one has to take glimmers of common sense where one finds them these days. I'll take any I can. Thank you 5 with sense!

Cheez - When Obama said nothing, Iran blamed him for supporting Mousavi. They've also said that they aren't talking to him about anything. Obama's lost the one and only thing he was trying to protect: his precious "negotiations" with the Iranian regime. And he would have lost it whether he opened his mouth or not. By choosing to remain silent, he has shown that he has an undue deference to negotiating with douchebags rather than calling them out when they slander him.

Seriously, Obama's like an abused wife here. I guess Iran only beats him because it loves him.

FB - Ginsburg would have preferred that New Haven got more black men to pass, whether qualified or not. To her, racial payback is more important than either equality or competence.

pass that health care and environmental legislation you hate.

It's not that I hate the legislation, it's that those things are profoundly anti-American.

Government-run healthcare is so far afield from what the Constitution allows the government to do that passing it would essentially mean that we no longer live in the nation our founders envisioned.

And the "environmental" legislation that nobody in Congress read before passing it won't do dick for the environment. I mean, not only is it meant to combat a threat that does not exist, it also grants exemptions to all kinds of politically connected "polluters".

In other words, both bills have as their primary purpose to concentrate more power over individual lives in the central government.

If both of those things pass, the United States of America is dead. We'll be on the ash heap of history with the USSR in short order.

Seriously, Obama's like an abused wife here. I guess Iran only beats him because it loves him.

If both of those things pass, the United States of America is dead. We'll be on the ash heap of history with the USSR in short order

Your talent for hyperbole is impressive.

Thank you.

I only wish it wasn't hyperbole.

I don't think I could come up with language dramatic enough to convey the true gravity of the situation in which we now find ourselves.

Although this might be a good start:

When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

We'll see, Brian. Though I must say some of your rhetoric sounds a lot like the libruls after 2004.

Yeah? Name three. And George Bush doesn't count.

Sorry, guess I wasn't clear. I meant your above comments about the Obama administration and its policies spelling doom for the U.S., and that the only recourse might be secession/revolution. Not your political rhetoric, which seems to be a mix of social conservatism, libertarianism, and neoconservatism.

Uh... yeah.

I don't know where I said the only recourse might be secession or revolution. Perhaps you're arguing with a different brian?

Obama's fascist policies DO spell doom for the US. Your failure to understand that fingers you as part of the problem.

Everything that Obama has done has come right from Mussolini.

And if you think I'm a social con, you really can't read too well.

When in the Course of human Events, it becomes necessary for one People to dissolve the Political Bands which have connected them with another, and to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature's God entitle them, a decent Respect to the Opinions of Mankind requires that they should declare the causes which impel them to the Separation.

Sounds like secession or revolution, no?

And if you think I'm a social con, you really can't read too well.

Should gay people be able to get married? Should I be legally permitted to snort coke? Should the military allow gay people to serve openly? Should abortion on demand be legal? Is assisted suicide OK?

Should gay people be able to get married?

Should I be legally permitted to snort coke?

Should the military allow gay people to serve openly?

Should abortion on demand be legal?

Is assisted suicide OK?

Of course, if that's your definition of "social con", I'd call it stunted. Social cons are interested in using the law to enforce moral codes of behavior. Things like sex, marriage, etc.

I've got a simpler view. If you expect the government to give you something, you better have something to give it in return. If you expect to be able to do something to yourself, you must not ever allow yourself to become a burden to others.

Ok. Different reasoning, some of the same conclusions. I agree, not a traditional social conservative, but not libertarian on social issues. Helpful clarification. Thanks.