Oh, lord, can you imagine the new dimension this would add to gaming the rankings? But
"The deans care dearly about where they rank," said Craig Holden, a partner at Lewis Brisbois Bisgaard & Smith and the chairman of the council, which is spearheading the proposal. "The rankings are a real driver for change — everybody recognizes that — and when you make diversity a sidebar rather a component of the rankings, you're sidelining the issue."
A real driver for change... as if law schools don't already strive for racial diversity!
Making diversity a factor in the rankings would create a solid incentive for law school administrators to bolster their diversity efforts, Holden said...
Diversity for the sake of U.S. News Rankings? I don't remember Grutter v. Bollinger accepting racial decision-making for the purpose of climbing in the U.S. News rankings.
HuffPo headlines: "Women Don't Have Constitutional Protection Against Discrimination." The writer, Amanda Terkel, quotes the 14th Amendment, and concludes, with unironic textualism: "That would seem to include protection against exactly the kind of discrimination to which Scalia referred." Thanks for the analysis, Amanda.
Terkel also called up Marcia Greenberger, founder and co-president of the National Women's Law Center, who professed to find Scalia's opinion "shocking" — even though he's been saying it for at least 15 years.
ADDED: Here's the interview with Scalia. From this lawprof's perspective, the most interesting thing he says is about pizza:
You more or less grew up in New York. Being a child of Sicilian immigrants, how do you think New York City pizza rates?
I think it is infinitely better than Washington pizza, and infinitely better than Chicago pizza. You know these deep-dish pizzas—it's not pizza. It's very good, but ... call it tomato pie or something. ... I'm a traditionalist, what can I tell you?
He's applying his legalistic language fussiness to food, but then what's with "infinitely"? What happened to verbal precision all of a sudden? He's gushing like... a girl.
Watch here. Chris Wallace does a great job of needling him about things Breyer's written about constitutional interpretation and, Breyer, as I'd expect, rises to the occasion. Breyer literally waves the Constitution around, in tiny booklet form, and figuratively waves around a bigger book, his book "Making Our Democracy Work."
Now, let's rummage through the transcript. Chris Wallace questions him about "just applying the law as written," and Breyer plugs in the expected elementary lesson about the concision of the phrases in the Constitution and the need to apply them in the changed circumstances of the modern world (airplanes! the internet!), and then Wallace displays the text of the 2d Amendment:
WALLACE: "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms" -- the right of the people to keep and bear arms -- "shall not be infringed." Now, Justice, I understand why, as a matter of policy, in a world with a lot of urban violence and big cities, that some people would say we need gun control, particularly in a big city like Washington, as they have here, and in Chicago. You ruled in both of those cases. And in both cases the court voted twice over your dissent that the founders meant what they said, people have a right to bear arms.
Breyer, of course, is ready for this:
BREYER: Yes. Yes. That's a wonderful example because, of course, it's not a matter of policy. It is a matter of what those framers intended. And you saw that first phrase, "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." What does that mean, the militia? Historians told us, and the dissenters thought they were right, that what that meant was that James Madison, thinking, "I've got to get this document ratified," was worried about opponents who would think Congress would call up state militias and nationalize them. "That can't happen," said Madison. And therefore, he wrote the Second Amendment to prove it. Now, if that was his motive historically, the dissenters were right.
There's some talk about judges acting like judges and how history can't answer some of the details. How do the old words and the old intent apply to new things? Breyer lists machine guns and torpedoes, and then, deviously, handguns. Wallace responds:
WALLACE: I understand. But it certainly didn't provide for a ban, at least that's what the court's decision was, your court's -- it didn't provide for a ban on all handguns as they have here in Washington, D.C.
BREYER: Are you a sportsman? Do you like to shoot pistols at targets? Well, get on the subway and go to Maryland. There is no problem, I don't think, for anyone who really wants to have...
WALLACE: But -- but it's...
BREYER: ... a gun.
WALLACE: ... but that's a policy issue. That's not a constitutional issue.
Breyer chooses not to jump on this point, perhaps because he'd have to say things that conservatives say. He'd have to promote federalism. Let me sketch it out.
If there isn't a right covering this particular subject, then state and local government will be able to legislate the policies that they, as a community, think are best. Yes, it's a policy issue, and — Breyer would say, if he'd gone on — that's why it's appropriate for legislative bodies to make decisions about it. If you don't like those decisions, the great thing about the United States is that you can move around and go to places that have policy preferences that suit your tastes. You have a right to travel and a right to change your residence to another state. And you also have the right to participate in politics, so there's also the alternative of trying to get the law in your state or city changed, so that handguns are not banned. Breyer's approach to the Second Amendment lets the people make the gun control laws what they want them to be and, when they do, they won't get caught up in litigation over the choices they make.
This is what conservatives say all the time about abortion and the separation of church and state (to cite the 2 most glaring examples). But here's Right Wing News — Chris Wysocki — excoriating Breyer for saying "get on the subway and go to Maryland."
Mind-boggling really, isn't it? Gee little black girl, do you want to go to the same school as white girls? Well, get on the subway and go to Maryland!
Well, no. There is a federal constitutional right covering that point, so you don't get the state-to-state variation. And that's the question: Is it a federal constitutional right or not? When you're arguing that there isn't a right, you're saying the law can vary from state to state. When is that intolerable and when isn't it? We all agree (now) to the uniform resolution of the school segregation problem that excluded decentralized decisionmaking. There is an Equal Protection right.
But there was, recently, a disagreement about the Second Amendment, and Breyer was on the side that thought there was no individual right. Put another way, Breyer's side of the Court thought that decentralized policymaking could govern. Do you think that's terrible? If you believe that there's a right, then, yes, of course, you do. But think of something else, where you think the Court is wrong about saying there's a right — perhaps, for you, abortion — and then, don't you remember all the times you made the argument that it wouldn't be so terrible because individual states could make their own decisions and people could move (or travel) to the states that gave them what they wanted?
Wysocki continues:
So mister, what if you are in a wheelchair? This doctor's office has stairs. If you want to see an accessible doctor, get on the subway and go to Maryland!
Whoa! You think the Constitution obliges private citizens, like doctors, to make their buildings wheelchair accessible?! That's so left-wing! Check your blog's name! What's the "Right Wing News" today, that righties have gone all lefty? That would be news!
***
(I have some more things to say about the Breyer interview, but I'll start a new post for that.)
CORRECTION: Sorry, I had "Chris Matthews" in the first sentence of this post. It's Chris Wallace.
The case is Perry v. Schwarzenegger. You can watch live on C-SPAN. I'll update with comments soon.
UPDATE: You can read some details about the case here. I'll have some of my own impressions in a little while.
UPDATE 2: You can watch the whole oral argument here. The first hour of the argument dealt with the threshold question of standing. California Governor Schwarzenegger and Attorney General Jerry Brown were the original defendants in the case, and they have opted not to appeal. Proponents of Prop 8 (which banned same-sex marriage) need a way to intervene using some other party with a personal stake in the outcome or the decision of the district judge, finding Prop 8 unconstitutional, will be the final word on the subject.
It seems as though there should be appellate review, but the constitutional limits on federal court jurisdiction don't depend on how important it is for an issue to be heard. There are technical requirements, and it seems as though the plaintiffs' lawyers did a clever job of setting things up so a district court decision in their favor would be insulated from appellate review. But listening to the oral argument, I got the impression the judges thought it was too clever.
In the second hour, the substantive question boiled down to whether there was a rational basis for excluding gay people from marriage. The pro-Prop 8 side rested heavily on the fact that only heterosexual couples produce babies accidentally. But that has so little to do with the value of excluding gay people from the status of marriage. It's hard even to understand why reserving marriage to heterosexuals would make them do a better job of deploying their reproductive powers. Why should gay people, who aren't even the problem, bear the burden?
The appeal comes at a tough time for Obama, who has been trying to shore up his liberal base ahead of the contentious congressional elections when his fellow Democrats are expected to lose many seats to Republicans. Democrats could lose control of the House of Representatives.
A key concern has been whether those who have supported Obama in the past will show up to vote in the November 2 midterm elections. He has opposed same-sex marriages but supported civil unions and extended some benefits to gay partners of federal employees.
To be fair, in his 2008 campaign, Obama said he was opposed to same-sex marriage. But, of course, people who wanted to believe he embodied the hope that they wanted to hope believed that he really, secretly, supported same-sex marriage. And he opposed DOMA:
As your President, I will use the bully pulpit to urge states to treat same-sex couples with full equality in their family and adoption laws. I personally believe that civil unions represent the best way to secure that equal treatment. But I also believe that the federal government should not stand in the way of states that want to decide on their own how best to pursue equality for gay and lesbian couples — whether that means a domestic partnership, a civil union, or a civil marriage. Unlike Senator Clinton, I support the complete repeal of the Defense of Marriage Act (DOMA) – a position I have held since before arriving in the U.S. Senate
If you brightened at that February 2008 statement, did you perceive that if a court said the same thing — that DOMA is antithetical to federalism principles and to equality — that Obama would fight against that court decision? Obama only supports Congress repealing DOMA — did you notice that at the time? — and if Congress — the new Democratic Congress — applies its first burst of power in 2009 to other matters... well, too bad. Vote for them again in 2010 and maybe they'll do something for you some day. The arc of history is long!
But heaven forbid that the courts rouse themselves to the point where they strike down the statute. Did Obama ever give you the impression that he believed that courts should be in the forefront, protecting the rights of the oppressed and downtrodden — that courts ought to have "the empathy to recognize what it's like to be ... gay"? Did you take that empathy remark the wrong way? To say a judge should "recognize what it's like" is not to say the judge should perceive that you have rights and actually enforce them. You silly voter!
Because if Barack Obama follows through with even half of the promises he made to the LGBT community during his campaign, he'll have done more to advance gay rights in this country than any President before him – combined.
How can he rake in votes just by seeming to care about the rights and interests of gay people? Not even seeming all that much — he's against same-sex marriage! — but just by stirring hopeful feelings and looking like somebody who cares. Well, he's already done it once. Why shouldn't he believe that what worked once will work again?
That was written in May 2009 — Springtime for Obama — and now it's Fall 2010. Things aren't so warm and sunny anymore, and now is when he needs to maximize the votes. Most Americans oppose gay marriage, and he can't alienate them, so won't you gay people (and you people who support them) continue to do what you're supposed to do and vote for those Democratic candidates? You know the Republicans won't help you. That's the grubby argument.
I will never compromise on my commitment to equal rights for all LGBT Americans. But neither will I close my ears to the voices of those who still need to be convinced. That is the work we must do to move forward together. It is difficult. It is challenging. And it is necessary. Join with me, and I will provide that leadership. Together, we will achieve real equality for all Americans, gay and straight alike.
That's what Talking Points Memo says. I'm trying to understand the theory by which it's racially insensitive. The only thing close, in my view, and I know it's not TPM's, is that the remark contains the unwitting assumption that gay people are white. TMP notes Coulter's explanation:
It was part of a larger argument on which she later elaborated, telling the crowd that the 14th Amendment only applies to African-Americans and that it does not, in fact, apply to women, LGBT people or other minorities.
Can I get a quote? I don't trust this paraphrasing. She said the 14th Amendment only applies to black people? Or did she say that the 14th Amendment should be understood with some reference to its historical context of insuring rights for the freed slaves? It's not the same thing, TPM.
"... that preclude opportunities for self-definition and coerce men into stifling identities. The Equal Protection Clause should not... presumptively tolerate such burdens on a man’s right of self-definition."
Lawprof John M. Kang argues that the law of gender discrimination should not protect men merely as "collateral beneficiaries of the protection afforded women, but in their own right." The article is called "The Burdens of Manliness."
Kang denies that he's a throwback to the "the sensitive troglodyte yearnings of the 1980s Men’s Movement," and I hear echoes of criticisms he must have received on drafts of this article. I was already a law professor back then, and my school (Wisconsin) was a hotbed of feminism theory. My own orientation at that the time — and now — was to see gender roles as limiting freedom for everyone. I remember suggesting to one of the most prominent feminist lawprofs that I thought feminism would be better if it expanded more generally into concern about the burdens of gender roles, which men felt too, in interestingly different ways. Individual freedom for all could be the overarching goal.
The response was not, as I'd naively anticipated at the time, that I had a great idea or that it was at least an intriguing proposal that we could casually converse about for a minute or 2. No, not at all. I mean, I'm still alive. But there was pushback. Swift, sharp snapback. Men get nothing from feminism. They must give ground. Much ground. For all that they have taken from us, for all the crushing and raping. Never give them the hint of a glimmer of hope that there is anything more that they can get. This is for us.
But —I tried to defend my humble, untenured self — wouldn't more freedom for everyone be better? No! My elder laid down what was, she assured me, the lesson of long political experience: If men think there's anything in it for them, they will use their superior power to take more and more, and the subordination of women will worsen. We must all follow the same strategy: to demand that men give up power and wealth for the benefit of women.
As for the Men's Movement... remember "Iron John: A Book About Men"? Remember thinking it was important to hate Robert Bly?
And what are the burdens of manliness? Ironically — ironjohnically — men are made to feel unmanly for developing their set of grievances and whining and moaning about the unfairness of it. But please don't let that stop you from expressing yourself in the comments.
ADDED: By the way, during the same period, you'd get similar sharp pushback from lefties if you said you thought gay people had the right to marry each other. That was viewed as a conservative position that would undermine the feminist critique of marriage as patriarchy. I also got an instant, angry response from a lefty feminist law professor when I said that the cause of gay rights might be advanced by scientific findings that homosexuality may have a biological cause. Back then, you see, homosexuality was supposed to be a choice, and scientists were condemned even for researching the matter. Today, of course, lefty lawprofs will get mad at you if you don't endorse gay marriage and the biological origin of homosexuality. Oh, how I wish I'd had a blog circa 1990! And I hope this post gives you a glimpse of why there is so much emotional energy behind my blogging.
Liberalism has made racial homogeneity uncool and unacceptable. Even many conservatives are made uncomfortable by lily-white gatherings -- hence the enhanced value to the right of Clarence Thomas, Shelby Steele, Condoleezza Rice, Linda Chavez, and any well-spoken Negro or Latino who consorts with the Tea Party crowd. That conservatives practice affirmative action even as they condemn it is a tribute to liberalism's handiwork.
I count—in his opinion today—seven citations to Justice Kennedy's 1996 opinion in Romer v. Evans (striking down an anti-gay Colorado ballot initiative) and eight citations to his 2003 decision in Lawrence v. Texas (striking down Texas' gay-sodomy law). In a stunning decision this afternoon, finding California's Proposition 8 ballot initiative banning gay marriage unconstitutional, Walker trod heavily on the path Kennedy has blazed on gay rights: "[I]t would demean a married couple were it to be said marriage is simply about the right to have sexual intercourse," quotes Walker. "'[M]oral disapproval, without any other asserted state interest,' has never been a rational basis for legislation," cites Walker. "Animus towards gays and lesbians or simply a belief that a relationship between a man and a woman is inherently better than a relationship between two men or two women, this belief is not a proper basis on which to legislate," Walker notes, with a jerk of the thumb at Kennedy.
Justice Kennedy? Hot sauce to go with those words?...
Any way you look at it, today's decision was written for a court of one—Kennedy—the man who has written most eloquently about dignity and freedom and the right to determine one's own humanity.
Justice Kennedy is certainly very important in the prediction of what the Supreme Court will do, and Walker may have written with the intent to influence him, but let's give Sandra Day O'Connor the respect she deserves. The line "moral disapproval, without any other asserted state interest,' has never been a rational basis for legislation" is from O'Connor's concurring opinion in Lawrence — and Walker's opinion is clear about that (on p. 133).
No other Justice joined O'Connor, who rested on the Equal Protection ground. Justice Kennedy wrote the majority opinion relying on the Due Process ground — talking about "the heart of liberty" being "the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life." That's what Lithwick refers to in her last sentence about writing "eloquently about dignity and freedom." But the O'Connor opinion in Lawrence will be more important in determining the same-sex marriage question, because that isn't a request to be left alone. It's a request for equal legal status — for recognition from the state.
O'Connor wrote:
Moral disapproval of this group, like a bare desire to harm the group, is an interest that is insufficient to satisfy rational basis review under the Equal Protection Clause.... Indeed, we have never held that moral disapproval, without any other asserted state interest, is a sufficient rationale under the Equal Protection Clause to justify a law that discriminates among groups of persons.
Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be “drawn for the purpose of disadvantaging the group burdened by the law.” Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating “a classification of persons undertaken for its own sake.” And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law “raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected.”
... The Equal Protection Clause “ ‘neither knows nor tolerates classes among citizens.’ ” Id., at 623 (quoting Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J. dissenting)).
Let's give Sandra Day O'Connor her due. She said some things no one else said.
ADDED: Indeed, the language from Kennedy's Lawrence opinion that speaks "most eloquently about dignity and freedom and the right to determine one's own humanity" is itself a quote from the plurality opinion in Planned Parenthood v. Casey — which was jointly written by O'Connor, Kennedy, and Souter. Here's Kennedy in Lawrence:
In Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The Casey decision again confirmed that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Id., at 851. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows:
“These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.” Ibid.
Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.
Yes, but that sounds like a pretty low bar to clear in the next case. It may be an increment of raising the bar, but everything depends on the next case. And since it was a statutory interpretation case that declined to address the constitutional level, Congress could amend the statute and neutralize it altogether. Krauthammer is writing in an aspirational mode... and defining "considerably" downward.
The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action....
[We do not] question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, amounts to the sort of racial preference that Congress has disclaimed... and is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race....
[T]here is no evidence—let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.
Justice Scalia has a concurring opinion to note that it "merely postpones the evil day" when the Court will have to decide whether the disparate-impact provisions of Title VII violate the Equal Protection Clause:
[T]he disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles.
Scalia (who also joins the Kennedy opinion) writes for himself alone. Justice Alito also has a concurring opinion, and he is joined by the Chief Justice and Justices Scalia and Thomas. He criticizes the dissenting opinion for characterizing the City's decision not to cancel the test results as "open, honest, serious, and deliberative":
Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation. To achieve that end, the City administration concealed its internal decision but worked — as things turned out, successfully — to persuade the CSB that acceptance of the test results would be illegal and would expose the City to disparate-impact liability. But in the event that the CSB was not persuaded, the Mayor, wielding ultimate decisionmaking authority, was prepared to overrule the CSB immediately. Taking this view of the evidence, a reasonable jury could easily find that the City’s real reason for scrapping the test results was not a concern about violating the disparate-impact provision of Title VII but a simple desire to please a politically important racial constituency.
That political officials would have politics in mind is hardly extraordinary, and there are many ways in which a politician can attempt to win over a constituency — including a racial constituency — without engaging in unlawful discrimination....
But was it unlawful discrimination?
Were they seeking to exclude white firefighters from promotion (unlikely, as a fair test would undoubtedly result in the addition of white firefighters to the officer ranks), or did they realize, at least belatedly, that their tests could be toppled in a disparate-impact suit? In the latter case, there is no disparate-treatment violation. Justice Alito, I recognize, would disagree. In his view, an employer’s action to avoid Title VII disparate-impact liability qualifies as a presumptively improper race-based employment decision. I reject that construction of Title VII. As I see it, when employers endeavor to avoid exposure to disparate-impact liability, they do not thereby encounter liability for disparate treatment.
ADDED: This post incorrectly stated that the Chief Justice joined the Alito concurrence. Tom Goldstein observes:
Judge [sic] Alito’s concurring opinion comes much closer to an overt criticism of the rulings of the district court and court of appeals. I found it notable that the Chief Justice - who seems to place a priority on not interjecting the Court into political disputes unnecessarily - does not join the concurrence.
In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge [sic] Souter, who she will replace.
"... I am saying that I cannot sit in the game, and that safer rules must be made to give me a chance. I repudiate that. If others are in there, deal me a hand and let me see what I can make of it."
[T]he International Association of Professional Black Firefighters tells us, "Cognitive examinations have an adverse effect upon blacks and other minorities." Du Bois crowed, "Fifty years ago the ability of Negro students in any appreciable numbers to master a modern college course would have been difficult to prove," and proudly documents 2,500 black college graduates. Imagine Du Bois listening to a rep from the black firefighters' association now sneering that the promotion test merely measures "the ability to read and retain"--i.e. engage in higher-level thinking processes! O tempora, o mores.
This will not do: People like Du Bois did not dedicate their lives to paving the way for black people to be exempt from tests. Sure, the tests may not correlate perfectly with firefighters' duties. But which falls more into the spirit of black uplift that you could explain to a foreigner in less than three minutes: teaching black candidates how to show what they are made of despite obstacles, or banning a test of mental agility as inappropriate to impose on black candidates?
The case, brought by white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement, featured claims of race discrimination on both sides. It was, Justice David H. Souter said, a “damned if you do, damned if you don’t situation.”
Had the city allowed the promotional exam to stand, Justice Souter said, it would have faced a lawsuit from black firefighters. When it threw out the test, promoting no one, it was sued by 18 white firefighters, one of them Hispanic, who claimed race discrimination.
The city said that throwing out a flawed test was a racially neutral act. Because no one was promoted, the city said, no one was singled out on the basis of race. But Justice Antonin Scalia was having none of that.
“It’s neutral because you throw it out for the losers as well as for the winners?” he asked. “That’s neutrality?”...
The city “looked at the results, and it classified the successful and unsuccessful applicants by race,” Justice Kennedy said to Edwin S. Kneedler, who represented the federal government. “And then you want us to say this isn’t race? I have trouble with this argument.”...
Chief Justice John G. Roberts Jr. [asked] the lawyer for New Haven, Christopher J. Meade. “Why is this not intentional discrimination?” Chief Justice Roberts asked. “There are particular individuals here,” he continued, “and they say they didn’t get their jobs because of intentional racial action by the city.”
Mr. Meade said the city should be afforded protection because it was trying to comply with a federal law.
Read the whole thing. This is genuinely a complicated problem, as the Breyer hypotheticals at the end of the article demonstrate.
But now, really, I must get serious and read the whole transcript of today's argument in Ricci v. DeStefano. Here's the PDF. I'll have something more soon.
[Northwest Austin Utility District v. Holder] challenges Congress's reauthorization of the Voting Rights Act in 2006... But... Congress didn't engage in a serious empirical comparison of voting patterns in the areas of the country that are and aren't covered by the Voting Rights Act. The civil rights establishment was intent on preserving the status quo, which has led to the election of some African Americans in the South at the expense of the Democratic party as a whole; and ... neither Republicans nor Democrats were willing to acknowledge the evidence suggesting that discriminatory barriers to ballot access today, unlike the '60s, seem to be very rare....
[Ricci v. DeStefano is] the most controversial affirmative action case of the term, involving the promotion of firefighters in New Haven. In 2003, the city administered a promotion test. The test was validated by independent experts, as federal law requires, to ensure that it focused on job-related skills rather than purely cognitive ones. But, after the test was administered, none of the top-scoring candidates for 15 positions turned out to be African American. (Fourteen were white, and one was Hispanic.) ... [T]he city refused to certify the exam and promoted no one. The city was then sued by 19 white firefighters (and one Hispanic) led by Frank Ricci, a sympathetic 34-year-old white man. Ricci, who is dyslexic, spent more than $1,000 buying the study guides recommended by the city and paying an acquaintance to record them as audiotapes, which he listened to as he drove to and from work.
The Ricci case is a nightmare for moderate liberal supporters of affirmative action, because it presents the least sympathetic facts imaginable. The Supreme Court has said repeatedly that affirmative action is most troubling when its burdens are concentrated on a few innocent white people rather than being widely dispersed among a large group of white and black applicants....
If the Supreme Court strikes down part of the Voting Rights Act and the New Haven affirmative action program, [it] would force Obama to articulate a moderate, middle-of-the-road position on race that is rooted in empirical evidence rather than ideology....
With all the other problems facing the country--from the economy to the war on terrorism--Obama has no incentive to take on liberal racialists who believe we've made little progress on race since the 1960s or conservative color-blind partisans who insist that anti-discrimination laws are no longer necessary. But everything in Obama's background suggests that he has the inclination and ability to help the country transcend the extremes that have defined our racial politics for too long.
