Ricci: When Judicial Activism Isn't Judicial Activism

What is it about affirmative action that turns conservatives into a squishy bundle of contradictions?

For one thing, they say people shouldn't think of themselves as victims, and then -- the first chance they get -- they cast themselves in that role.

And for another, after years of talking about how judges shouldn't engage in judicial activism, now they're applauding that five Supreme Court justices -- Roberts, Alito, Scalia, Thomas, and Kennedy -- dabbled in that very practice in deciding Ricci vs DeStefano, a case involving 20 mostly white firefighters in New Haven, Conn. The plaintiffs alleged "reverse discrimination" after the city threw out a promotion exam because too few minorities (one Latino, no African-Americans) scored high enough to earn promotions.

Apparently, for a lot of people, it's only "judicial activism" if you disagree with the outcome.

Supporters of the decision -- which, from the chatter in the punditry and blogosphere, include a lot of folks who have long opposed affirmative action and are shoehorning those feelings into this case -- get sidetracked into talking about the test. They assume that, if the exam was racially neutral, then there is no problem.

But that's not what the law says. Or rather, what it used to say. Before Ricci, the law said that whether an exam was perceived to be fair was less important than whether it had a "disparate impact" on those who took it. Title VII of the 1964 Civil Rights Act, as later affirmed by a 1971 Supreme Court decision in a case called Griggs vs Duke Power, says that an employer can be liable for discrimination if a practice (i.e., a promotion exam) has a "disparate impact" on one group. The idea was to guard against a bias that may not be obvious.

That's the lawsuit that city attorneys in New Haven were afraid was coming their way if they certified the test results because the exam had a disparate impact on black firefighters, who had a much lower pass rate than white counterparts. So after much deliberation, which included public hearings, the city decided to toss out the results. And, ironically, the city wound up being sued anyway -- this time, by a group of mostly white firefighters