ACSBlog has a series of discussions about the Ricci case and underlying labor law and the changes that Kennedy’s majority opinion brought to the mix which I thought might be of interest to readers. I especially found Sherrilyn Ifill’s essay helpful.
For my money, the Ricci case takes aim square at Griggs v. Duke Power. And the question is: how long will Title VII stand when SCOTUS was willing to do a de novo review of the facts in the Ricci case, rather then the usual practice of remanding back to the District Court for further inquiry? I sense a shift in civil rights laws if they can find a case to swing it.
And with the right wing bloc of SCOTUS is willing to rewrite the laws from the bench — as in be an activist judiciary? That is exactly what the right wing cries foul about when they disagree with the outcome of the case, isn’t it?
Activist judges come in all philosophical stripes. It’s worth keeping that in mind — and pointing it out whenever it happens. What Justice Kennedy did was to enunciate a new standard from the bench. Which is the very model of a modern activist judge, isn’t it?
The NYTimes puts together a similar round robin discussion on the labor law back and forth, with a particularly fine essay from Christine Rodriguez on the real difficulties inherent in these kinds of cases. And the broader questions for municipalities who have to thread through Title VII, fairness and equity questions and still find leaders among their employees:
The narrower question worth asking now is: what might the Ricci case mean for the use of standardized testing? Will it lead employers who want to create diverse workforces – particularly public employers concerned with the prospects of their black and Hispanic constituents – to use standardized tests less frequently, or search harder for alternatives? Or, will it allow employers to rely more heavily on tests while escaping responsibility for using hiring and promotion practices more likely to provide opportunity for racial minorities?
Justice Kennedy emphasizes that standardized tests are “objective” measurements presumably capable of fairly identifying the best applicants. In a sense, testing has been a way to ensure fairness by reducing the influence of nepotism, subjective race-based judgments and the value of informal hiring mechanisms. On the other hand, as Justice Ginsburg points out in dissent, the tests themselves are often tools of exclusion that are not always aligned with the qualities that make for a good firefighter, such as inter-personal skills and “command” presence.
As Steven Greenhouse points out in the NYTimes, the Ricci decision is likely to raise even more questions for municipalities trying to navigate Title VII considerations. But it does make the written test versus other means of identifying leadership candidates a bigger part of the debate, which I think is a good thing for most municipalities anyway.
Written tests have been phased out in most places, in favor of other leadership measurements, and I think the Ricci decision is likely to hasten that trend, don’t you?
Stuart Taylor attempts to advance the canard that the Court was unanimous in its decision — no idea how 5-4 with a concurrence from Alito is "unanimous," but then, I’m not Stuart Taylor trying to do whatever it is that he does when he gets a burr in his shorts (or helping Wendy Long advance her whinery, whatever comes first). It’s clearly the "new new" in right wing talking points, because Sen. Cornyn’s been mouthing it, too.
Never let it be said that there was a talking point, however mathematically challenged, that couldn’t be rinsed, lathered and repeated, I suppose. It would be nice if talking heads appear on teevee saying it, that the "news" hosts ask how that’s possible in a 5-4 split. But perhaps it’s asking too much that people prepare in advance for an interview?