Monday, June 29, 2009


Activist Judges Roberts, Alito, Scalia, Thomas and Kennedy Create New Right For White Men. The Activist Court Created New Law.

Roberts Court Rules: White Men Were Discriminated Against

by Christine Bowman

The U.S. Supreme Court's conservatives -- Justices Roberts, Scalia, Thomas and Alito, joined by swing-voter Kennedy -- have almost certainly added fuel to the white-supremacist, right-wing, entitled-male fires Monday by overturning an earlier ruling by Judge Sonya Sotomayor and others on the 2nd U.S. Circuit Court of Appeals. That means the Roberts Court is standing now with the forces that have always said, since enactment of the Civil Rights Act of 1964, that white men are just not getting a fair deal.

Legal nuances aside, the Ricci v. DeStefano job discrimination case had been widely seen as pitting white firefighters against their black and Hispanic colleagues, all of whom were competing for promotions. Why? The city of New Haven, CT had hired an outside firm to test firefighters to determine who would be promoted. Then the city decided to ignore the test results which yielded an unexpectedly skewed pool of applicants that eliminated all black applicants from consideration for promotion. For the record, New Haven's population is 60% black.

The majority Supreme Court opinion said the city erred and should proceed with promotions based on the test. The court offered not just its majority opinion, written by Kennedy, but two other concurring ones written by Scalia and Alito. Justice Ginsberg was joined in her dissent by Souter, Stevens and Breyer.

The Associated Press interpretation is that "The ruling could alter employment practices nationwide, potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities."

Soon after the ruling, The American Prospect admitted some skepticism regarding Justice Alito's concurring opinion and the majority's stance in general:

Alito is arguing that the decision to throw out the tests was not based on a good faith concern about disparate impact but about avoiding the political consequence of a backlash among black voters.

Of course, it also needs to be said that there's no way Italian Americans could be considered anything like a "politically important" ethnic constituency in the Northeast.

The number of concurring opinions here--Scalia filed one as well--rebuking the dissent of the court's four liberals is interesting. The court's conservatives are protesting, one might say, a little too much.

In addition to re-igniting long-simmering resentment over issues of employment discrimination and perceived reverse discrimination, today's ruling gives political conservatives something new to use in arguing against confirmation of President Obama's Supreme Court nominee, a Latina woman, Sotomayor. Newt Gingrich and The American Spectator were among those immediately crowing that Sotomayor had been overruled and thus was a tarnished candidate for the high court. This despite the fact that Sotomayor did not author the lower court opinion that was reversed today. As Senator Patrick Leahy explained, "Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent."

Prior to today's ruling, People for the American Way anticipated the right's disparagement of Sotomayor as well:

Opponents of Judge Sotomayor have gone to great lengths to use the ruling of her panel in Ricci v. DeStefano against her ...

Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.

... Sotomayor is anything but an outlier. She and the seven other federal judges who decided Ricci and Oakley at the district and circuit levels were unanimous in determining that precedent and federal law required the rejection of the suits.

In a teleconference Monday sponsored by People for the American Way, three experts answered questions about the ruling: Marge Baker, executive vice president for People For the American Way; Dustin McDaniel, Attorney General of the state of Arkansas, who had filed an amicus brief in support of the city of New Haven; and Mary Frances Berry, University of Pennsylvania professor and former chairwoman of the U. S. Commission on Civil Rights during the Clinton Administration.

According to Baker, "What happened today is the court changed the law." She called the ruling "problematic" for government entities that have tried to follow Title VII of the Civil Rights Act and "troubling" overall. She described the Roberts Court as "systematically undoing key civil rights protections."

McDaniel, too, noted the court's "troublesome evolution in the interpretation of Title VII" and clear shift from "what the settled law has been for decades. I am troubled by that and disappointed in the ruling," he said. "We have seen today a ruling from the Supreme Court that changes the game dramatically. ... They have changed existing law."

The Arkansas attorney general also expressed fear that the court's shift on discrimination might lead to "resegregating our schools" and "further the racial divide."

Berry described the majority opinion as "text without context" that ignores decades of discrimination in hiring of firefighters in New Haven and elsewhere. She said the court has "undermined" efforts to correct the problem and characterized the Roberts Court point-blank as "conservative right-wing activists."

Berry also criticized the justices for not remanding the case back to a lower court to decide based on their new standard for "disparate impact." Noting Ginsberg's Footnote 10,* Berry argued that if the lower court used the wrong standard, the proper thing is to send it back -- let them use the new standard. Instead, the Supreme Court "wanted to overturn it," she concluded. Baker agreed that "they didn't want a lower court to look at it again."

McDaniel worrried that "there's a real cloud" now for lawyers such as himself who represent government clients. "We don't know what the boundaries are for our clients."

In a statement for People for the American Way, Baker concluded:

The Court today set a new standard for how states and cities across the country can operate—and in the process exposed conservative cries for ‘judicial restraint’ as utterly hypocritical. It seems conservative legal activists are perfectly happy to have judges rewrite the law as long as they get the result they want. In Ricci, the far right wing of the Court defied Congress’s well thought out design for encouraging diversity and preventing discrimination in favor of its own preferred policy. If the ruling has any upside, it’s that we’ll no longer have to listen to the Right’s cries of ‘judicial activism’ with a straight face.

With Roberts and associates now taking off till October, and Souter heading for the retirement hills for good, it promises to be a long, hot summer in the city, indeed. There's nothing like encouraging the racists in their self-perception as victims, then getting the hell out of Dodge, or D.C., as the case may be.

*10 "The lower courts focused on respondents’ “intent” rather than on whether respondents in fact had good cause to act. See 554 F. Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh consideration would be in order. But the Court has seen fit to preclude further proceedings. I therefore explain why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party."

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