What will she do for an encore? Part Two

I understand that supporters of Judge Sotomayor are claiming that she has been “vindicated” by the fact that four dissenting judges in Ricci adopted something resembling the position she took when the case was before her. It’s comforting that liberals now understand that there are worse things than having a divided Supreme Court disagree with your position. During the Bush years, when a divided Supreme Court would strike down this or that Bush anti-terrorism measure, some liberals were quick to declare the president “lawless.” They did so despite the fact that there was little precedent on the subject, and such precedent as there was often supported the Bush administration’s position. Fortunately, liberal commentators seems to be “growing in office.”

But their defense of Judge Sotomayor nonetheless lacks merit. For, as I explained yesterday, the four dissenting Justices in Ricci did not adopt a position substantially similar to Sotomayor’s. The dissent rejected the “intent” standard that Sotomayor had blessed and argued for a more objective standard that would require the City of New Haven to defend its adverse treatment of the white firefighters as based on good cause to believe that the test they succeeded on would not be upheld in court.

Thus, while Sotomayor was prepared to bless disparate treatment of whites based on a defendant’s good intentions, the dissenters would have required some objective showing that the test was unlawful. As I argued yesterday, this makes a difference when it comes to preventing disparate impact theory from opening the door to a quota regime. Stuart Taylor captures the point:

[W]hile 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.

But Stuart Taylor and I aren’t the only ones who see a significant difference between Justice Ginsburg’s approach and Judge Sotomayor’s. Judges Ginsburg, Souter, Stevens, and Breyer also see it. That’s why they would have remanded the case to the district court so it could decide whether the City’s conduct passes muster under the dissenters’ standard. If there were no real difference between the lower courts’ approach (including Sotomayor’s) and that of the dissent, no remand would have been warranted.

Judge Sotomayor’s approach thus failed to command the vote of a single Supreme Court Justice. And to the extent her defenders claim that this was a complex matter in which the range of plausible answers was too difficult to discern, they might want to explain why Sotomayor dealt with the appeal in just a single paragraph.

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