NEOAVATARA

The Supreme Court yesterday reversed the 2nd Court of Appeals, and in particular Judge Sonia Sotomayor, on their decision in the Ricci case.  This was expected, as even members of the 2nd Court of Appeals thought the ruling was ludicrous.

But it is interesting to see that the court was not all that divided on the results.

When you look at the specifics of the ruling, none of the nine justices defended Sotomayor.  That is right:  NONE. All nine were somewhat accusatory of the judicial thinking of the lower court.  As Stuart Taylor points out today:

In fact, even Justice Ruth Bader Ginsburg‘s 39-page dissent for the four more liberal justices quietly but unmistakablyrejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven’s decision to dump the promotional exam without even inquiring into whether it was fair and job-related.

Justice Ginsburg also suggested clearly — as did the Obama Justice Department, in a friend-of-the-court brief — that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city’s claimed motive — fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions — was a pretext. The jury’s job would have been to consider evidence that the city’s main motive had been to placate black political leaders who were part of Mayor John DeStefano‘s political base.

…while Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

So in other words, the most liberal member of the court, who voted against the 5-4 decision, basically stated that Sotomayor and her colleagues decision to uphold summary judgement (and prevent the firefighters from having their day in court) was completely and utterly wrong.  This is the liberal leader of the court, mind you.

What Justice Ginsberg was doing simply was avoiding the larger question:  is Affirmative Action constitutional?  Ginsberg and the liberal bloc avoided the question.  However, they at the same times showed that the lower courts ruling was completely illogical.  The city showed no evidence to support their claim…and thus, it was purely and simply opinion that the justices ruled on.  Even Ruth Bader Ginsberg thought that was inane.

Scalia was scathing in his majority ruling:

“[The federal government is prohibited from discriminating on the basis of race, so surely] it is also prohibited from enacting laws mandating that third parties” — [e.g., a city government] — “discriminate on the basis of race.” Scalia added, “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.”

Robert Gibbs, who in my mind is in a race to become the worst public White House Spokesperson of all time, basically stated that the majority was using ‘judicial activism’ to get to their ruling.  Hmm.  So now, the belief that all people should be treated equally is activism?  Maybe Gibbs, and supposed Constitutional scholar Barack Obama, should actually read the Constitution.   Gibbs said Sotomayor was following precedent…something that even the liberals on the Supreme Court didn’t agree with.  Did Gibbs even bother to read the ruling, or is he just winging it?  He is moron of the nth degree.

This reversal of Sotomayor will not change much for her…she will easily be confirmed.   Even news that she helped defeat Robert Bork’s nomination won’t hurt her.  However, public support has waned.  Before the reversal, 42% supported her confirmation, and 34% opposed; now that ratio is 37%/39% against.

It does show that liberals are not concerned about judicial temperament or qualification…only about identity politics.  Sotomayor’s rationale in this case was absurd, and the court, including the dissenters, called her out on it.  Ultimately, this case won’t, as Justice Ginsberg stated, ‘have legs’.  So SCOTUS will delay the true judgement day on affirmative action for another day…and allow racial identity politics on the local level to live on.