US top court rules against city on race promotio

[dilettante]

Reverse-discrimination is a controversial topic without a thread and this seems to be a timely article, especially given the Sotomayor connection:
US top court rules against city on race promotion


By James Vicini (http://blogs.reuters.com/search/journalist.php?edition=us&n=James.Vicini)

(http://blogs.reuters.com/search/journalist.php?edition=us&n=James.Vicini)
WASHINGTON, June 29 (Reuters) - The U.S. Supreme Court ruled on Monday that New Haven, Connecticut, discriminated against a mostly white group of firefighters who were denied promotions, overturning a decision by high court nominee Sonia Sotomayor.


By a 5-4 vote and splitting along conservative and liberal lines, the justices overturned a ruling for the city by a U.S. appeals court panel that included Sotomayor, who is President Barack Obama (http://www.reuters.com/news/globalcoverage/barackobama)'s nominee to replace retiring Justice David Souter on the Supreme Court.


At issue in the case was whether a city can, as New Haven did, throw out the results of a firefighter promotion exam after it yielded too many qualified white applicants and no acceptable black candidates. The high court ruled it cannot.


The appeals court's ruling in the New Haven case is expected to be a focus of questioning by Republicans at Sotomayor's Senate confirmation hearing scheduled for next month.
In the New Haven case, civil rights groups said the ruling could affect promotion policies for employers nationwide, many of which operate under "affirmative action" programs designed to foster diversity and redress past discrimination.


The Supreme Court ruled for a group of 19 white firefighters and one Hispanic firefighter who filed a lawsuit in 2004 against New Haven.
Writing the court's majority opinion and reading it from the bench on the last day of the term, Justice Anthony Kennedy said the city's action in discarding the tests violated federal civil rights law.


The firefighters said they would have been promoted if the city had not thrown out the tests for lieutenant and captain because no blacks had scored high enough to move up in rank.


The dispute was one of two major civil rights cases that reached the Supreme Court after Obama became the nation's first black president.

http://www.reuters.com/article/marketsNews/idUSN2936044120090629




I hesitate to have a forceful opinion here, not knowing enough about the test itself. But, IMO, unless there is evidence to demonstrate that the test itself is discriminatory then the results should be accepted. I'd be curious to know if this is the same test given in years past and, if so, has it led to similar results wrt race/ethnicity.

[Evangeline]

They did say there was no evidence that the test was biased.

But I liked Ruth Bader Ginsberg's dissenting opinion about empathy regarding white male Justices and white male firemen. That was a pretty good dig at the right's mocking of Obama's wanting a judge with empathy.

"Mr. Ricci and his fellow (firefighters) understandably attract the court's empathy," Ginsburg wrote. "But they had no vested right to promotion."

http://www.kansascity.com/444/story/1295781.html

[Michael]

The way I read these two cases (the original Sotomayor decision and the subsequent SCOTUS appeal decision), is that Sotomayor's ruling seems to be the better reading of law (requires less 'legislating from the bench').

In the original case, it is critically important to note that the reason the test results were set aside is because of an attempt to comply with existing laws (and the high probability of a discrimination lawsuit from a minority party).

The relevant statutes appear to acknowledge that the States have the right to make such decisions. Thus, I consider Sotomayor's ruling to have been originally correct.

The appeal decision seems to invent a new legal standard (nothing unusual there from the Roberts Court), entirely unoriginal to the Constitution, unless you believe that the original constitutional provision for the equal-opportunity clause was meant to protect the white majority against possible future special considerations being granted to minorities (which seems historically absurd).

Essentially, SCOTUS reversed the decision based on an 'ad hoc' assumption that was never proven to exist. That is to say, that the original ruling was discriminatory against whites. That had never been at issue with the test or the decision to set aside the results or the original court case.

The town's decision specifically cited the legal consideration of minority interest (which they are legally bound to do) in their original decision to set aside the test.

The SCOTUS ruling essentially 'invents' new facts for the original case by asserting 'reverse discrimination' where none existed according to the facts of the case as it was originally brought.

In other words, the facts of the case are non-discriminatory to whites (by strict legal terms) as the reasonings given for setting the results aside did not cite any result except that of the minority interest (which was legally required).

The way SCOTUS turned this case into a 'reverse-discrimination' suit is a testament to the ability of the Robert's Court to play legal crusader for rightwing political causes.

[Michael]

They did say there was no evidence that the test was biased.

But I liked Ruth Bader Ginsberg's dissenting opinion about empathy regarding white male Justices and white male firemen. That was a pretty good dig at the right's mocking of Obama's wanting a judge with empathy.

Ginsburg is a wonderful asset to the Court. The dig is brilliantly funny and deadly accurate.

[dilettante]

The way I read these two cases (the original Sotomayor decision and the subsequent SCOTUS appeal decision), is that Sotomayor's ruling seems to be the better reading of law (requires less 'legislating from the bench').

In the original case, it is critically important to note that the reason the test results were set aside is because of an attempt to comply with existing laws (and the high probability of a discrimination lawsuit from a minority party).

The relevant statutes appear to acknowledge that the States have the right to make such decisions. Thus, I consider Sotomayor's ruling to have been originally correct.

The appeal decision seems to invent a new legal standard (nothing unusual there from the Roberts Court), entirely unoriginal to the Constitution, unless you believe that the original constitutional provision for the equal-opportunity clause was meant to protect the white majority against possible future special considerations being granted to minorities (which seems historically absurd).

Essentially, SCOTUS reversed the decision based on an 'ad hoc' assumption that was never proven to exist. That is to say, that the original ruling was discriminatory against whites. That had never been at issue with the test or the decision to set aside the results or the original court case.

The town's decision specifically cited the legal consideration of minority interest (which they are legally bound to do) in their original decision to set aside the test.

The SCOTUS ruling essentially 'invents' new facts for the original case by asserting 'reverse discrimination' where none existed according to the facts of the case as it was originally brought.

In other words, the facts of the case are non-discriminatory to whites (by strict legal terms) as the reasonings given for setting the results aside did not cite any result except that of the minority interest (which was legally required).

The way SCOTUS turned this case into a 'reverse-discrimination' suit is a testament to the ability of the Robert's Court to play legal crusader for rightwing political causes.

How can "discrimination against whites" have never been an issue? It was THE foundational issue brought forward by the plaintiffs in the lawsuit. They claimed the city was discriminating against them based on their race.

[Michael]

How can "discrimination against whites" have never been an issue? It was THE foundational issue brought forward by the plaintiffs in the lawsuit. They claimed the city was discriminating against them based on their race.
And Sotomayor ruled correctly that the city's decision didn't reference whites at all, thus the plaintiffs were incorrect on a matter of fact. The city's decision referenced the fear of minority discrimination suit and State law required the city to consider the discriminatory aspects of the test, specifically with respect to minority interests.

There is no standing law requiring that the city premptively address issues of potential 'discrimination against a majority'.

It is to be noted that the Robert's Court pretty much just invented that legal requirement now. This is the definition of 'legislating from the bench'.

Edited to add: It is important to note the distinction that the original City decision and the Sotomayor ruling were non-discriminatory (strict legal terms) since they didn't consider the 'white' firefighter's interest as a group or as individuals in any way at all - there is no reference to them at all - their interests were not considered material to the decision. The end result of that decision may appear to be discriminatory against the white firefighters, but the decision the City made and the decision of the Sotomayor court, I don't believe are at all. There are strict/narrow rulings on the merits of the relevant facts of the case - quite unlike the SCOTUS Appeal descision which I characterize as pure judicial activism.

[dilettante]

And Sotomayor ruled correctly that the city's decision didn't reference whites at all, thus the plaintiffs were incorrect on a matter of fact.

I don't see how that's relevant (especially since one of the plaintiffs was Hispanic). One doesn't have to reference the discriminated group to discriminate. After all, a "white's only" sign doesn't reference blacks (or Asians or Hispanics, etc) but is nonetheless discriminatory against them. If one was required to say "I am expressly discriminating against X" for it to count, then there would be no discrimination.


The city's decision referenced the fear of minority discrimination suit and State law required the city to consider the discriminatory aspects of the test, specifically with respect to minority interests.

There is no standing law requiring that the city premptively address issues of potential 'discrimination against a majority'.

It is to be noted that the Robert's Court pretty much just invented that legal requirement now. This is the definition of 'legislating from the bench'.

The standing law being appealed to is that one cannot deny promotion based solely on the race of the employee.

[Michael]

I don't see how that's relevant (especially since one of the plaintiffs was Hispanic). One doesn't have to reference the discriminated group to discriminate. After all, a "white's only" sign doesn't reference blacks (or Asians or Hispanics, etc) but is nonetheless discriminatory against them. If one was required to say "I am expressly discriminating against X" for it to count, then there would be no discrimination.

I stated my understanding of the law in this case. You appear to agree with the SCOTUS decision to invent a new standard of law here. I see no reason or purpose to argue the point.

Btw, one could include a 'token' black firefighter in the plaintiff's case, that changes nothing.

The standing law being appealed to is that one cannot deny promotion based solely on the race of the employee.
That's not relevant to the original City decision.

That may be the unintended result of the City's decision, but the City's decision was made in good faith and did not seek to discriminate against the majority. The Sotomayor decision affirmed this reasoning.

You and the SCOTUS appeal are making the argument that the City explicitly set aside the results because they wanted to discriminate against the white majority and that's illegal and improper.

That interpretation is just not factually correct to the facts of the original case - but is a very popular rightwing political issue.

[dilettante]

I stated my understanding of the law in this case. You appear to agree with the SCOTUS decision to invent a new standard of law here. I see no reason or purpose to argue the point.


I'm perfectly willing to agree to disagree, especially since our opinions have practically no impact anyway :)


That's not relevant to the original City decision.

That may be the unintended result of the City's decision, but the City's decision was made in good faith and did not seek to discriminate against the majority. The Sotomayor decision affirmed this reasoning.

You and the SCOTUS appeal are making the argument that the City explicitly set aside the results because they wanted to discriminate against the white majority and that's illegal and improper.

That interpretation is just not factually correct to the facts of the original case - but is a very popular rightwing political issue.

Neither I nor (I imagine) the SCOTUS believe the officials of New Haven were 'out to get the white man'. I suspect their driving motivation was "Don't get sued" and I really feel sorry for them because they were almost certain to get sued no matter what they did after the test came back. Such is the confused and sensitive legal nature of American discrimination.

As such, I see no problem with view that the city's decision was both made "in good faith" and, none the less, wrong. The city likely attempted to interpret discrimination law and precedent to the best of their ability; the SCOTUS concluded that their interpretation was flawed. And since the SCOTUS is the authority on the issue, their interpretation is the one that actually matters. This ruling brings the situation in New Haven into agreement with the authoritative interpretation and clarifies that interpretation for future reference wrt this court.

I agree with the court to the extent that one should not be denied promotion based solely on one's race. Whether this is done out of racist prejudice or fear of being sued is a separate issue (and not a trivial one), but regardless it should not be done. In other words, fear of being sued doesn't give you the right to be racially discriminatory with promotions, especially if you're the government.

[Birdzeye]

They did say there was no evidence that the test was biased.

But I liked Ruth Bader Ginsberg's dissenting opinion about empathy regarding white male Justices and white male firemen. That was a pretty good dig at the right's mocking of Obama's wanting a judge with empathy.



http://www.kansascity.com/444/story/1295781.html

It reinforces my perception that the Roberts court is more sympathetic to civil rights issues - when it's white males complaining.

[Michael]

Neither I nor (I imagine) the SCOTUS believe the officials of New Haven were 'out to get the white man'.
This is quite untrue.

The plaintiff's suit against New Haven and the grounds of the SCOTUS appeal specifically states the accusation that New Haven threw out the test precisely in order to discriminate against the majority 'whites'.

I suspect their driving motivation was "Don't get sued" and I really feel sorry for them because they were almost certain to get sued no matter what they did after the test came back. Such is the confused and sensitive legal nature of American discrimination.
I think you are putting the cart before the horse.

Prior to today's ruling, there was no legal requirement on the books stating that New Haven MUST review the test's potential effect for 'reverse discrimination'. The Robert's Court just invented that this morning (literally). Ergo, one cannot expect New Haven or any lower courts to rule in favor of a SCOTUS precedent that didn't exist at the time.

It is to be noted that there is a specific legal requirement on the books stating that New Haven MUST review the test's potential effect for discrimination against visible minorities.

The City of New Haven and the Sotomayor court ruled correctly that the city of New Haven was following all statutory considerations at the time of judgement.

Its one thing for the Robert's Court to legislate from the bench, but for you to apply the reasoning retroactively can only be interpreted as partisanship here.

As such, I see no problem with view that the city's decision was both made "in good faith" and, none the less, wrong. The city likely attempted to interpret discrimination law and precedent to the best of their ability; the SCOTUS concluded that their interpretation was flawed. And since the SCOTUS is the authority on the issue, their interpretation is the one that actually matters. This ruling brings the situation in New Haven into agreement with the authoritative interpretation and clarifies that interpretation for future reference wrt this court.
SCOTUS established a new standard for judging such cases. That standard didn't exist before SCOTUS announced the decision this morning.

I don't believe the case should have been even heard by SCOTUS at all since there was no substantial legal principle at stake here and the original decision fits with existing statutory law (and is a right that belongs to the States).

I agree with the court to the extent that one should not be denied promotion based solely on one's race. Whether this is done out of racist prejudice or fear of being sued is a separate issue (and not a trivial one), but regardless it should not be done. In other words, fear of being sued doesn't give you the right to be racially discriminatory with promotions, especially if you're the government.
Do you agree that no one has a right of entitlement to a job promotion? That's apparently what the majority decision here appears to affirm in actuality.

[Michael]

Here's a quote from Yglesias that was widely circulated last week, but its just as relevant this week...

The two cases handed down yesterday are just two new additions to the trend observed by Jeffrey Toobin, “in every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.” That’s conservative jurisprudence in a nutshell.

Roberts is the most consistent Judge anyone has ever seen at SCOTUS. He's become VERY predictable.

[dilettante]

Do you agree that no one has a right of entitlement to a job promotion? That's apparently what the majority decision here appears to affirm in actuality.

I agree that no one has the inalienable right to a job promotion, if that's what you're asking. However, I stand by the principle that promotions should not be primarily dependent on the race of the applications, nor denied solely because the otherwise qualified applicants happened to be the wrong color. As best I can tell, that was the principle uphold in this ruling and I hardly think that principle should be a shocking surprise to anyone.

[dilettante]

Here's a quote from Yglesias that was widely circulated last week, but its just as relevant this week...



Roberts is the most consistent Judge anyone has ever seen at SCOTUS. He's become VERY predictable.

As I understood it, Robert's rulings wrt to maintaining the thrust of the Civil Rights Act and condemning the strip search of the 13 year old girl were rather unexpected and demonstrate a mistrust of the States and a siding with the allegedly wronged, respectively.

[Michael]

As I understood it, Robert's rulings wrt to maintaining the thrust of the Civil Rights Act and condemning the strip search of the 13 year old girl were rather unexpected and demonstrate a mistrust of the States and a siding with the allegedly wronged, respectively.
Check out last week's Osburne case (5:4 decision) for classic Roberts reasoning for not allowing exonerating DNA evidence to be admitted to a case (essentially guarenteeing that an innocent man is going to jail for a crime he didn't commit). Typical day on the bench for Roberts that.

I've not read the strip search case nor the Voting Rights ruling. I do know the latter was an 8:1 surprise decision, but that's all.

I'll review them and comment appropriately.

[Michael]

Looks like I'm not the only accusing SCOTUS of legislating from the bench on Ricci case.

Todd on Ricci: "[T]he majority actually, well, to put it bluntly, legislated from the bench"

That's an MSNBC news report.

Source (http://mediamatters.org/mmtv/200906300004)

[Michael]

As I understood it, Robert's rulings wrt to maintaining the thrust of the Civil Rights Act and condemning the strip search of the 13 year old girl were rather unexpected and demonstrate a mistrust of the States and a siding with the allegedly wronged, respectively.
If I understand your point correctly, you are defending Roberts against the accusation that he is highly predictable and always votes against the victim?

I don't see either case as demonstrating that. Btw, Roberts didn't author either decision.

Strip Search case:

1. First of all, I'd like to say that I think it is insane that a case of a public school principal invoking a strip search on a 13 year old girl on the suspicion that she may have had some aspirin/advil type product (which the girl denied having) made it up to the Supreme Court in the first place! It is mind-boggling to think that lower courts previously ruled that the Principal was acting within the law. :erm:

2. The 8:1 decision here isn't much of a surprise. No one but Thomas could find that kind of action legal and proper. Thomas is consistent in his view that the needs of the state outweigh just about any other concern. That he's the dissenting opinion here is no surprise.

3. It is to be noted that the case was decided in two parts. Only the first part is an 8:1 decision. The second part addressed whether or not the Principal could be held legally liable for his actions (which the court just ruled were illegal actions). Roberts, true to form, decided the answer was "no". Ginsburg and JP Stevens dissented from that part of the ruling, asserting that the Principal should be able to be held liable for his actions in civil court.

In other words, even this 8:1 decision shows Roberts upholding the principle that public officials ought to be immune to any repercussions from instigating an illegal act as a function of their public office - even after he agrees that they are guilty of an illegal act.

Voting Rights Act case:

This case is a classic of the Roberts Court.

1. The decision was 5:4 which is standard (Roberts, Scalia, Alito, Thomas and Kennedy against Ginsburg, Stevens, Breyer and Souter) with the Court's five conservatives forming a consistent block.

2. The decision barely avoids striking down Section 5 of the VRA and supplies much ammunition to the next case with that as its goal. The discussion of this in the Court's decision makes up well over half of the words in the decision itself. Reading this part of the decision looks like the defense of the reasoning for striking down Section 5. However, striking down laws is definitely NOT characteristic of the Roberts Court. Roberts has established the alternative policy of gutting the law internally and letting it stand (as a hollow shell). And that's exactly what the Court appears to do here. It allows Section 5 to stand, but effectively removed the plaintiff from jurisdiction of Section 5.

On the basis of these two decisions, I don't think it is possible to build a defense of Roberts as anything but what the quotation cited above described Robert's decisions as:

“in every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.”

Both cases that you have referenced clearly show Roberts acting exactly the way the quote cites him as acting.

[dilettante]

Hmmm. I think you're reaching. Roberts and the conservative bloc as a whole could easily have (and from the sources I've read, were expected to) swing both these rulings in a more neo-conservative direction but did not. The most common reaction I heard when the rulings were released was surprise, especially about the VRA.
WRT the latter, I disagree with your characterization the VRA was "internally gutted". The ruling leaves the essential requirement that states pre-approve changes relating to elections with Congress. Allowing localities that have had no cases of discrimination in the last two and a half decades to exempt themselves seems only fair, IMO. The conservative justices have made it clear that they consider the entirety of section 5 of the VRA to be dubious; this case gave them an open door to shoot it down as unconstitutional and they didn't take it (though Thomas tried).

Roberts is a conservative justice and will thus predictably vote conservative more often than liberal. But I don't see him as being any more predictable than the norm, and while you may have been able to foresee the nuances of the VRA ruling, it seems that most commentators on the court could not.

But I'm not terribly interested in defending Roberts as a Justice or debating his "predictability"; I just wanted to throw another opinion out there. In general I think I agree with the courts decisions WRT to the strip-search, the New Haven firefighters and the VRA (and I'm glad Thomas's more extreme view didn't carry the day).

Oh, and I believe your mistaken about authorship; Roberts did author the 8-1 VRA decision.