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

But the city of New Haven acted in a completely rationale way, consistent with the law and mindful of the standard of disparate impact. The city attorneys were on their game. They had the law right. And their advice was sound — at least at the time.

That’s why what the city did was upheld by eight different federal judges: the U.S. District Court judge who first heard the case and backed the city; a three-judge majority on the 2nd U.S. Circuit Court of Appeals which included Supreme Court Justice Sonia Sotomayor; and the four dissenting justices on the Supreme Court.

Writing for the majority on the Supreme Court, Justice Kennedy said that it wasn’t enough for the city to fear a lawsuit due to a practice that caused disparate impact but that it must “demonstrate a strong basis in evidence that … it would have been liable.”

Kennedy has lost touch with the real world. How about the fact that the New Haven Fire Department had already been sued by black firefighters nearly a half dozen times since 1972 for racial discrimination? Do you suppose that meant that the city’s fear of another such lawsuit was reasonable?

Here’s what is unreasonable — to expect anyone to believe the whopper that the five conservative justices who sided with the mostly white firefighters just called balls and strikes and decided this case consistent with the law. That’s not so.

There was no suspense here. Roberts, Kennedy, Scalia — and most famously, Thomas — are all on record opposing affirmative action. And, fresh out of law school, to get a job with the Reagan administration, Alito bragged about belonging to a group called Concerned Alumni of Princeton, whose goal was to keep minorities and women out of that institution. During his confirmation hearings, he claimed he didn’t remember anything about the group.

The majority knew exactly where it wanted to go with Ricci and it wasn’t above doing a little legal cut-and-paste to get there. All it had to do was brush aside more than 35 years of legal precedent about disparate impact in racial discrimination cases and, as several critics have noted, make new law — a job best left to Congress.

They have a name for that sort of thing. It’s called judicial activism.