Supreme Court reverses ruling on White Firefighters Case

[grantt]

It should have been overwhelmingly in favor of the firemen. A close vote on this is shamefull.

 

[MystikWizard]

It should have been overwhelmingly in favor of the firemen. A close vote on this is shamefull.

I couldn't agree more with you.

 

[Kulindahr]

Post specifically the part(s) of Title VII you felt that SCOTUS demonstrated Judicial Activism and elaborate, if you would.

I second that motion.

It should have been overwhelmingly in favor of the firemen. A close vote on this is shamefull.

As was the close vote on Heller.
It's really sad when a large number of Americans, even a large majority, can look at a case and with plain common sense see how it ought to go, but these guys in their realm of legalese can't get it straight.

 

[palemale]

Sorry for the delay, been busy. Keep in mind, their will be volumes written about this decision. You guys are making me reread this decision, which ultimately is good because, with each reading, I realize how poorly reasoned the decision is. In any event, I have quoted from the decision, in bold face below, to illustrate my point that the decision is an example of judicial activism.

Just a reminder what I am talking about. Judicial conservative call themselves strict constructionists. They claim that judges should strictly interpret a statute or the constitution, rather than "legislating" from the bench. In other words, they are not to substitute their judgment for the judgment of the legislative body, elected by the people, when passing a statute.

Title VII of the Civil Rights Act of 1964, 42 U. S. C.§2000e et seq., as amended, prohibits employment dis-crimination on the basis of race, color, religion, sex, ornational origin. Title VII prohibits both intentional dis-crimination (known as “disparate treatment”) as well as, in some cases, practices that are not intended to discrimi-nate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”).
Ricci v. DeStefano, page 17.

The Civil Rights Act of 1964 did not include an expressprohibition on policies or practices that produce a dispa-rate impact. But in Griggs v. Duke Power Co., 401 U. S. 424 (1971), the Court interpreted the Act to prohibit, in some cases, employers’ facially neutral practices that, in fact, are “discriminatory in operation.” Id., at 431. The Griggs Court stated that the “touchstone” for disparate-impact liability is the lack of “business necessity”: “If an employment practice which operates to exclude [minori-ties] cannot be shown to be related to job performance, the practice is prohibited.” Ibid.; see also id., at 432 (em-ployer’s burden to demonstrate that practice has “a mani-fest relationship to the employment in question”); Albe-marle Paper Co. v. Moody, 422 U. S. 405, 425 (1975). Under those precedents, if an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination. Ibid. (allowing complain-ing party to show “that other tests or selection devices,without a similarly undesirable racial effect, would also serve the employer’s legitimate interest”).
Twenty years after Griggs, the Civil Rights Act of 1991, 105 Stat. 1071, was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimina-tion. That provision is now in force along with the dispa-rate-treatment section already noted. Under the dispa-rate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact onthe basis of race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with
business necessity.” Ibid. Even if the employer meetsthat burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C).
Ricci v. DeStefano, page. 18-19.

I'm sorry for the extensive citation to the Court's decision, but it is necessary for me to explain why I think this is judicial activism. The Court recognized that Title VII did not provide for "disparate impact" liability when the statute was written, but the Supreme Court created liability in the statute in the Griggs decision. Over the next 20 years, courts established precedent expounding on "disparate impact" discrimination. In 1991, Congress amended Title VII to enshrine "disparate impact" liability in the statute itself. Courts, in interpreting what Congress meant by "disparate impact," will look at the settled meaning of the term at the time Congress writes it into a statute.

The precedent the SCOTUS recognizes in the Ricci decision states as follows:

Under the disparate impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses “a particular employment practice that causes a disparate impact onthe basis of race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(k)(1)(A)(i). An employer may defend against liability by demonstrating that the practice is “job related for the position in question and consistent with business necessity.” Ibid. Even if the employer meet s that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs. §§2000e–2(k)(1)(A)(ii) and (C).
Ricci v. DeStefano, page 18-19.

When faced with possible lawsuits, New Haven chose not to implement the test, which clearly had a disparate impact on minority candidates. It chose not to defend the test, it chose not to demonstrate that the practice was job related, and it did not consider an alternative employment practice. In essence, the SCOTUS determined that New Haven's failure to defend an employment practice that had a "disparate impact" was itself intentional discrimination because it harmed white firefighters based on their race.

This is simply ridiculous reasoning. Congress adopted a statue that made unlawful practices that favored whites over minorities, even if the discrimination was not intentional. One may disagree with the statute, but that is supposed to be Congresses job to set policy, not the SCOTUS. The Conservative judges obviously did not like what Congress did, so they legislated from the bench, something conservatives continuously criticize liberal judges for doing.

 

[Kulindahr]

^ That's a very subtle but thorough argument. What bothers me, though, is that reports say that some blacks qualified, though they may not have had the highest scores, and that leaves the situation a bit odd.

What I see mostly in the cites from the court are reasons that they could rule as they did, but not that they ought to. Did they give any positive, i.e. affirming reasons for the ruling? or was it merely, "We can, so we will"?

 

[palemale]

Kulindar, check out my July 2 post. I quoted a passage from the decision where the SCOTUS says that 9 black candidates passed the test and, had the test results not been discarded, three blacks would have been promoted over the period of time the list would have been used to fill promotions.

The problem with the decision is that the SCOTUS gave little or no guidance for future courts. Essentially, though, they have eviscerated the statute because they seem to have left courts or employers with no remedy for a violation of the statute. Their reasoning was that New Haven, in trying to remedy the "disparate impact," did so by discriminating against the white firefighters. But that would be true of any attempt to remedy an employment act that had a disparate impact.

My guess is that four conservative justices wanted to say the "disparate impact" part of the statute was unconstitutional, but Justice Kennedy wouldn't go that far. Instead, they took a half measure that left the statute unenforceable.

 

[bankside]

Just a reminder what I am talking about. Judicial conservative call themselves strict constructionists. They claim that judges should strictly interpret a statute or the constitution, rather than "legislating" from the bench. In other words, they are not to substitute their judgment for the judgment of the legislative body, elected by the people, when passing a statute.

When faced with possible lawsuits, New Haven chose not to implement the test, which clearly had a disparate impact on minority candidates. It chose not to defend the test, it chose not to demonstrate that the practice was job related, and it did not consider an alternative employment practice. In essence, the SCOTUS determined that New Haven's failure to defend an employment practice that had a "disparate impact" was itself intentional discrimination because it harmed white firefighters based on their race.

This is simply ridiculous reasoning. Congress adopted a statue that made unlawful practices that favored whites over minorities, even if the discrimination was not intentional. One may disagree with the statute, but that is supposed to be Congresses job to set policy, not the SCOTUS. The Conservative judges obviously did not like what Congress did, so they legislated from the bench, something conservatives continuously criticize liberal judges for doing.

Critics of judicial activism are usually legislators engaging in protracted pontification that amounts to saying "We don't like what the Constitution is making us do. How dare the Court call us on what we were trying to get away with."

The trouble with the bold assertion above is that the Court is always supposed to substitute it's judgement for the judgement of the legislative body when it reasons that there is a discrepancy between the statute and the constitution. It is obliged to do that because the legislatures made it bear that burden of judicial review. It is obliged to do that because it is an independent organ of state.

If the framers of the constitution had wanted otherwise, the terms of supreme court justices would have expired at the moment of presidential inauguration and they would all be appointees of the new administration, or of the new congress, etc.

Those decrying judicial activism always neglect the role that was imposed on the court by the people. Far from empire building and sneaking things through from the bench, they would be engaging in treason if they did not come to their own independent reasoned understanding of the constitution, and vacating any conflicting legislation accordingly.

 

[Kulindahr]

Kulindar, check out my July 2 post. I quoted a passage from the decision where the SCOTUS says that 9 black candidates passed the test and, had the test results not been discarded, three blacks would have been promoted over the period of time the list would have been used to fill promotions.

The problem with the decision is that the SCOTUS gave little or no guidance for future courts. Essentially, though, they have eviscerated the statute because they seem to have left courts or employers with no remedy for a violation of the statute. Their reasoning was that New Haven, in trying to remedy the "disparate impact," did so by discriminating against the white firefighters. But that would be true of any attempt to remedy an employment act that had a disparate impact.

My guess is that four conservative justices wanted to say the "disparate impact" part of the statute was unconstitutional, but Justice Kennedy wouldn't go that far. Instead, they took a half measure that left the statute unenforceable.

Reading back over that and other citations from the decision, I can see where SCOTUS was obligated to go through the reasoning the city should have gone through, sort of doing their homework for them. They mentioned the job performance (business necessity) requirement, which is where the city could have taken refuge but didn't, for example.

Also interesting to me is Scalia's assertion, during the oral arguments, that the disparate treatment and disparate impact provisions of Title VII "are at war with one another". I think that may provide some insight into this decision.


Drat -- stopped for breakfast and lost my train of thought!

 

[MystikWizard]

I also noticed that Justice Thomas voted with the Majority Opinion in this case. Can't wait to see the guilt trip being laid on him and accusations of "selling out".

 

[NickCole]

I also noticed that Justice Thomas voted with the Majority Opinion in this case. Can't wait to see the guilt trip being laid on him and accusations of "selling out".

You needn't wait. Thomas has always held an anti affirmative action position while benefitting from opportunities because he's black.

 

[NickCole]

^^

Read Justice Thomas' autobiography.

It's called My Grandfather's Son or something like that.

 

[Kulindahr]

^^

Read Justice Thomas' autobiography.

It's called My Grandfather's Son or something like that.

How about a real answer, by providing a nugget or two from that book?