Comment OnThe Supreme Court’s Decision In Ricci v. DeStefano

The Supreme Court’s 5-4 decision in Ricci v. DeStefano interprets the critical protections of Title VII in a way never intended by Congress when it passed this landmark law to prevent workplace discrimination more than 40 years ago.  Today’s narrow decision is likely to result in cutbacks on important protections for American families.  It is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law.  This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces. 

In Ricci, five justices of the Supreme Court narrowly reversed the ruling of the Second Circuit, which had been supported by the Equal Employment Opportunity Commission, the Department of Justice, many states, the National League of Cities and the National Association of Counties.  The lower court’s ruling in Ricci was also supported by the majority of the Second Circuit, including judges appointed by Democratic and Republican presidents.

It would be wrong to use today’s decision to criticize Judge Sonia Sotomayor, who sat on the panel of the Second Circuit that heard this case but did not write its unanimous opinion.  Judge Sotomayor and the lower court panel did what judges are supposed to do, they followed precedent.  It is notable that four justices would have upheld the Second Circuit’s ruling, including the retiring Justice Souter, who Judge Sotomayor is nominated to replace.  The dissent concludes: “This Court has repeatedly emphad that [Title VII] ‘should not be read to thwart’ efforts at voluntary compliance.. . . The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture.”

Judge Sotomayor’s nomination is supported by law enforcement organizations, public officials on both sides of the aisle -- and just today, the American Hunters & Shooters Association, all of which have endorsed her long record of judicial restraint.  The decision of Judge Sotomayor’s panel in Ricci was an example of that judicial restraint, and it followed both the facts and the law.  Although the judges on her panel were sympathetic to the plaintiffs’ claim, the Supreme Court had not spoken on this issue.  The judges were bound by the precedent of the Second Circuit.  Had Judge Sotomayor’s panel ruled in favor of the firefighters claim, their decision would have been judicial activism contrary to clearly settled and longstanding Second Circuit precedent.   The Second Circuit was bound by this precedent and not free to adopt a new interpretation of the law, as the Supreme Court has done today.

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