Within minutes of today’s decision in Ricci the right-wing opened a new assault on President Obama’s nominee to the Supreme Court, claiming that all nine justices disagreed with Judge Sotomayor. The claim featured prominently in a Federalist Society press call held just over an hour after the decision was handed down; right-wing law professor Jonathan Adler made the claim on his blog; and the same claim is all over the National Review’s website. By lunch, even Senator John Cornyn (R-TX) had picked up the spin.
The basis of this claim is the fact that both Justice Kennedy’s majority opinion and Justice Ginsburg’s dissent created new legal standards which are different than the twenty-five year old rule Sotomayor was required to follow in Ricci. Under the Second Circuit’s 1984 decision in Bushey v. New York State Civil Service Commission employers have almost carte blanche authority to reconsider a hiring or promotion test if minorities underperform white applicants who take that test. The newly-announced rule created by today’s majority opinion says that employers must have a “strong basis in evidence” showing that the test was in fact illegal before they can throw out a promotion test. Justice Ginsburg’s dissent would have carved a middle ground, allowing employers to reconsider a test when they have “good cause to believe” that the test was illegal.
So Cornyn and his co-ideologues are right that Sotomayor failed to predict that both Kennedy and Ginsburg would create never-before-imagined legal standards in their dueling opinions in Ricci, but this is hardly a legitimate attack on Sotomayor. As legendary Supreme Court reporter Linda Greenhouse explains, Sotomayor’s crime was that she simply followed the rules that were in place when Ricci was before her court:
This is a substantial weakening of the disparate-impact prong of Title VII. [T]he 2nd Circuit (and the 6th Circuit, which had handled a similar case in a nearly identical way) was playing by the old rules, and the Supreme Court changed those rules. Don’t we want our appellate judges to play by the rules they are given and to refrain from the activism that would be involved in crafting new ones? Does it seem to you, as it does to me, that Judge Sotomayor’s critics are now kind of stuck?
The lovely thing about being the nation’s highest court is that you aren’t bound by lower-court decisions, and can create new rules on the fly. Judge Sotomayor did not have this luxury, and she shouldn’t be attacked for doing nothing more than following a binding precedent.