In the wake of the Supreme Court’s resolution of Ricci v. DeStefano – the Court’s highly anticipated, highly controversial, and highly complex “season finale” – the most conservative elements of the GOP seem desperate to spin the case as a stunning rebuke of Judge Sotomayor, which it plainly is not (thanks, Rebecca). But even in a crowded field, the National Review’s “Reckoning with Ricci” stands out for its disingenuous oversimplification of both the facts and the law.
First, one has to question whether Ricci is, in fact, a “model of judicial restraint.” Although the case did “le[ave] for another day the core constitutional question of whether the Civil Rights Act’s ‘disparate impact’ provisions [. . .] are valid under the Fourteenth Amendment’s equal-protection clause,” Justice Scalia, the conservative poster boy against “judicial activism,” would have reached and struck down those core provisions.
Further, though the Court did not reach the constitutional question, it did essentially gut the disparate impact provisions of the Civil Rights Act, a frustrating mockery of “restraint” that’s become a hallmark of the Roberts Court. Notwithstanding NRO’s attempts to rhetorically frame disparate impact as a judicial invention, Congress and a Republican president wrote the disparate impact theory of discrimination into the U.S. Code. I admit that the statute does “put employers in a pincer,” but it’s hardly for the Supreme Court, especially under conservative theories of jurisprudence, to solve the conundrum by writing affirmative defenses into the statute. Nevertheless, that’s exactly what Kennedy does on page 38.
It is this novelty – for better or worse – that makes the fact of Judge Sotomayor’s reversal not just understandable, but meaningless as far as the larger debate of her own “restraint.” When the Supreme Court so thoroughly rewrites the scope of existing law, a reversal of the lower court literally provides no new information. The Justices understood this fact: one searches the majority and dissenting opinions in vain for what NRO describes, without citation, as a stern rebuke of the Second Circuit. To the contrary, Justice Kennedy “almost seemingly goes out of his way not to criticize the decision below.” Just so: if hard facts make bad law, hard facts and new law make for even worse grandstanding.
Finally got around to reading the NRO thing, and I agree it’s bad, but I’m pretty sure I read elsewhere on New Republic’s site something that came to the same conclusion (SCOTUS’s 93 pages = 2nd Circuit screwed the pooch) but through a focus on the dissent. Basically, its reasoning was “5 member majority for reverse & grant summary judgment to plaintiffs + 4 member dissent for vacate and remand to district court for trial = 9 member unanimity that 2nd Circuit was wrong”. That strikes a fairly accurate summary of the SCOTUS holding.
Also… I wonder how much of the attempt to spin it as a “stern rebuke” is because of a belief that a stern rebuke of how the case was handled (unpublished per curiam, then per curiam that didn’t add much of anything to the district court’s opinion) was deserved even if there’d been a 9-0 affirmation of the Circuit ruling. Granted, many of the people I’ve seen express such a belief have advocated bans on unpublished and per curiam opinions, period, so perhaps they’re biased… but then, what reasons justify the existence of unpublished and per curiam opinions?
Posted by Steve | July 6, 2009, 6:46 pmThere’s a Volokh article floating around suggesting that it was impossible for the 2nd Circuit’s chief to get enough judges on board to write a full opinion that wouldn’t be a waste of space. So their choices were to give a muddled explanation of their holding which only one (maybe two) judges would sign on to, or endorse the district court and let the Supreme Court handle it. Hard facts make bad law and all that. Admittedly, someone eventually has to explain what the law is, but the buck needn’t stop with the Second Circuit. It’s not an optimal outcome by any means, but if it was the only possible one, meh.
Posted by ACG | July 7, 2009, 1:44 am