A version of this post appeared originally on The Root (www.theroot.com) where Prof. Ifill is a regular contributor.
When in the penultimate week of the Term, the conservative-dominated Supreme Court ruled 8-1 in favor of upholding section 5 of the Voting Rights Act, and 8-1 striking down a school's decision to strip search a 13-year-old middle school student in a search for drugs, it seemed pretty much certain that the Court planned to lower the hammer in the Ricci case, the Title VII employment discrimination case involving the New Haven firefighters. (The Court does have a keen public relations sense).
Today's decision in Ricci v. DeStefano doesn't disappoint. It's an enormously important decision - not only for the decision itself in which 5-4 along now plainly drawn ideological lines the Court reverses the district and appellate court opinions upholding the decision of the City of New Haven to refuse to certify the results of the promotions exam. But this decision is revealing of the conservative majority's willingness to take unrestrained steps to fashion the results it seeks. Applying the law as it stands would surely have meant that the City of New Haven was well within its rights to refuse to certify the firefighters' promotions exam after finding stark racially disparate results. But guided, it seems, by a sense that denying white firefighters, including sympathetic lead plaintiff Frank Ricci, what they apparently believe is a right to certified results of a promotions exam, the Supreme Court in its own words "search[es] for a standard that strikes a more appropriate balance." In laymen's terms, this is known as "making it up as you go along." This is not in and of itself objectionable. It's in fact part of what judges do. But it does demonstrate that judicial activism is a two-way street, and undermines the argument that judges simply apply the existing law.
The new standard announced by the Court, is that clear disparate impact is an insufficient basis for an employer to take facially neutral, race conscious actions as the City of New Haven did in this case, when it refused to certify the promotions exams. Instead, an employer must show that "there is a strong basis in evidence of disparate-impact liability."
Had the Court stopped here - announcing a new standard to determine whether a prima facie case of Title VII violation is sufficient to support a municipal employers race conscious, but otherwise facially neutral employment decision - it still would have been a blow to voluntary efforts to ameliorate discrimination in public sector employment, creating a considerably higher standard than that contemplated in the past for addressing such claims. After announcing this new standard, the appropriate course would have been a remand to the district court to apply the facts to the new legal standard. But the Court goes much further. It takes the extraordinary step of determining itself that there is "not a strong basis in evidence" in this case to justify the City of New Haven's actions.
This is not a case in which the facts all overwhelmingly lead to one obvious conclusion. One need only read Justice Alito's concurrence and Justice Ginsburg's dissent in this case, to have a sense of how far differently a decisionmaker could view the facts of this case. The district judge - who had an opportunity at trial to view the credibility of the witnesses and to hear the testimony first-hand -- should have been given the opportunity to view the hotly contested facts of this case in light of the Court's new legal standard. But this might not have produced the result the majority clearly deems imperative in this case.
Believe it or not, this case is a winner for Judge Sotomayor, who famously sat on the panel of the Second Circuit Court of Appeals that upheld the decision of the trial court supporting the City of New Haven's decision not to certify the exam results. Unlike the 5-member conservative majority on the Supreme Court, Judge Sotomayor and her colleagues didn't step out of their appellate judicial role when they summarily affirmed the district court opinion. As Judge Barrington Parker explained in his decision (joined by Judge Sotomayor) supporting the Second Circuit's refusal to rehear the case, the appellate court believed that the district court applied the correct legal standard to the facts of the case. The Second Circuit panel therefore affirmed the District Court's decision. It did not attempt to supplant the district court's interpretation of the facts with its own views. This is consistent with appropriate appellate judicial decisionmaking, which should not reverse trial court opinions based on factual errors unless there is "clear error." Judge Sotomayor and her colleagues on the Second Circuit thus demonstrated judicial restraint.
Today the Supreme Court aggressively takes up the fact-sifting work of the trial court. And in announcing a new legal standard, the Court removes any arguments that Judge Sotomayor and her colleagues on the Second Circuit somehow got the law wrong on this case. How can Judge Sotomayor's reputation be impugned when she applied a legal standard that until today, was entirely appropriate?
Justice Alito's concurrence, in which he's joined by Justices Scalia and Thomas is also illuminating. What Justice Alito sees in New Haven's actions, is not the good faith effort of a City with a history of discrimination in firefighter hiring to address a stark and alarming racial disparity in exam results. Instead Alito is certain that there's something of a racial conspiracy afoot - a conspiracy by black community leaders to discriminate against whites. Justice Ginsburg's sarcastic characterization of Justice Alito's view of the facts is spot on: "Never mind the flawed tests New Haven used and the better selection methods used elsewhere, Justice Alito's concurring opinion urges. Overriding all else, racial politics, fired up a by a strident African- American pastor, were at work in New Haven." In fact, Justice Alito devotes pages and pages of his decision to examining the actions of Rev. Boise Kimber, who Alito describes as "a politically powerful New Haven pastor," including Kimber's "loud, minutes-long outburst" at a Civil Service Board meeting, Rev. Kimber's "adamant oppos[ition to the] certification of the test results" and his attempts to "exert political pressure" on the Board. All of this sounds like garden-variety aggressive rough and tumble of city politics, but to Alito it's evidence of racial quid pro quo.
Justice Ginsburg does an admirable job of laying out some of the important facts that clearly do bear on the decision not to certify the results of the test. The testimony of experts, New Haven's history of gross underrepresentation of minorities as firefighters, and most importantly, the evidence that was before the Civil Service Board that formed the basis of its decisiomaking. She concludes based on the record that "[t]here is scant cause to suspect that maneuvering or overheated rhetoric, from either side, prevented the CSB from evenhandedly assessing the reliability of the exams, and rendering an independent, good-faith decision on certification." Most importantly, Justice Ginsburg takes issue with the fashioning of this new legal standard adopted by the Court. She points out that the majority pays scant attention to the solid and voluminous catalogue of Title VII decisions of the past 20 years. Her dissent makes a compelling case that the existing disparate standard is both workable and sound for the disposition of this and other similar cases.
Frank Ricci may or may not be promoted in the New Haven fire department. The certification of the exam results means that Ricci's name will be listed among those eligible for promotion. The fire department may select captains and lieutenants from among the names on the list. But this decision does mean that cities like New Haven are discouraged from engaging in the kind of voluntary action Title VII was designed to promote.