The Ricci Case

As expected, the Supreme Court handed down a 5-4 decision reversing the Second Circuit’s decision on the Ricci firefighter case. As Ian Millhiser explains:

For 25 years, the United States Court of Appeals for the Second Circuit has given employers broad discretion to reconsider a promotion test whose results favor one race over another. Judge Sonia Sotomayor followed this binding precedent when she rejected several firefighters’ claim of reverse discrimination in the now-famous Ricci v. Destefano case, as she is obliged to do as a lower-court judge. Yet, as the Justices showed in today’s 5-4 decision in Ricci, they are not bound by the same constraints that bound Judge Sotomayor. Today’s ruling creates a new standard which says that an employer’s decision to toss out a hiring test must have a “strong basis in evidence” showing that the test preferred one race over another. The Supreme Court has powers that Judge Sotomayor does not, and it used that power today.

This seems like a good time to link to Ramesh Ponnuru’s smart New York Times op-ed on this case. Ponnuru makes the eminently sensible point that whether or not you like the conservative justices’ new rule, there’s nothing “originalist” about legal conservatism’s hostility toward policies designed to provide assistance to non-whites. It’s pretty abundantly clear from the historical record that the congresses that framed the Civil War amendments were not opposed to remedial measures designed to advance the interests of African-Americans. The view that the constitutional guarantee of equal treatment exists to protect the whites from unfair efforts to help non-whites is perhaps legitimate, but unquestionably an ahistorical take on the issue developed by conservatives relatively recently. I would also add that there’s a common sense difference between courts stepping in to protect a minority group from the depredations enacted by majority-controlled elected branches of government, and the idea of courts stepping in to protect the majority group from the political process.