Posted by Jonathan Adler:
Tidbits from *Ricci* on the Second Circuit's Disposition:
http://volokh.com/archives/archive_2009_06_28-2009_07_04.shtml#1246289493
There is relatively little in Justice Kennedy's majority opinion that
directly addresses the handling of this case by the U.S. Court of
Appeals for the Second Circuit. There are, however, some interesting
passages from some of the other opinions that suggest disagreement
with how the Second Circuit panel resolved the case.
First, Justice Ginsburg's dissent contains an interesting footnote --
Footnote 10 -- suggesting that she and the other dissenters were
prepared to vacate and remand the case as recommended by the Obama
Administration's amicus brief.
10. The lower courts focused on respondents� �intent� rather than
onwhether respondents in fact had good cause to act. See 554 F.
Supp. 2d 142, 157 (Conn. 2006). Ordinarily, a remand for fresh
consideration would be in order. But the Court has seen fit to
preclude further proceedings. I therefore explain why, if final
adjudication by this Court is indeed appropriate, New Haven should
be the prevailing party.
This would suggest that even the Court's dissenters believed that the
Second Circuit did not properly address the issues raised by the New
Haven firefighters, even if they would adopt a standard that would
make it difficult for the firefighters to prevail.
There's also some interesting language at the close of Justice Alito's
concurrence (joined by Justices Thomas and Scalia) that I read as a
subtle rebuke to Judge Sotomayor and the Second Circuit panel (which
expressed sympathy to the firefighters in its per curiam opinion), as
well as a rejection of an "empathy" standard for judicial
decision-making.
Petitioners were denied promotions for which they qualified because
of the race and ethnicity of the firefighters who achieved the
highest scores on the City�s exam. The District Court threw out
their case on summary judgment, even though that court all but
conceded that a jury could find that the City�s asserted
justification was pretextual. The Court of Appeals then summarily
affirmed that decision. The dissent grants that petitioners�
situation is �unfortunate� and that they �understandably attract
this Court�s sympathy.� Post, at 1, 39. But �sympathy� is not what
petitioners have a right to demand. What they have a right to
demand is evenhanded enforcement of the law�of Title VII�s
prohibition against discrimination based on race. And that is what,
until today�s decision, has been denied them.
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