Regardless of how one feels about the fairness in this all, this article at least serves to highlight the fact that there is a law on the books called Title VII and it has a disparate impact provision. It is up to judges to interpret exactly what the law means and what it covers.

The media has chided Judge Sotamayor as if it should be obvious to everyone she "re-wrote" the law with her ruling. In fact, based on the law as written (whether you think its a good law or not is irrelevant), the action of the New Haven fire department to hold promotions based on a test that seemed to sail into "disparate impact" waters, simply showed its interpretation of a law on the books. Judge Sotamayor, in her judgement, agreed that New Haven's actions were legal and justified under the law.

She didn't rule that the minorities had to be promoted. She didn't rule the whites couldn't be. She ruled that New Haven rightly concluded the test may have uneccesarily screened underrepresented groups from being selected for the job.

Based on that ruling she is being held up as a racist when in fact, accoridng to the letter of the law as written, her ruling could very well be correct. 4 of 9 Supreme Court justices agree. That hardly puts her far to the left of main stream legal thought and in fact based on the makeup of the court may very well mean she has interpretted the standing law correctly.

If you don't like the results...change the laws. This activist judge hyperbole is BS.

In fact, if one reads the majority opinion:

Petitioners take a strict approach, arguing that under Title VII, it cannot be permissible for an employer to take race-based adverse employment actions in order to avoid disparate-impact liability—even if the employer knows its practice violates the disparate-impact provision. ... We cannot accept petitioners’ broad and inflexible formulation. ...

Petitioners next suggest that an employer in fact must be in violation of the disparate-impact provision before it can use compliance as a defense in a disparate-treatment suit. Again, this is overly simplistic and too restrictive ...

the City could be liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative that served the City’s needs but that the City refused to adopt. §2000e–2(k)(1)(A), (C). We conclude there is no strong basis in evidence to establish that the test was deficient in either of these respects.

The Court put forth a [new] stricter rule that troubles some, but the opinion itself (fears of implications aside) leaves open the possibility another fire department could toss the test if the evidence was strong enough. For similar racial concerns. They would have to have more evidence on their side that the tossed test was not necessary and/or the alternative was clearly better.

-j

...the ones who ignored decades of precedent.

Easy answer.

However, I agree with the "activist judge" talking point, it's stupid and meaningless.

But that doesn't change the fact that a majority of the court ignored decades of established precedent. Our legal system used to be built on precedent. No more.

According to the majority's logic, the same thing could happen somewhere else, whites and blacks could both sue, and the cuty could easily lose to both. How the hell does that happen? Want to explain that little line of logic?

The Court may well re-affirm that Chapter VII written in 1963 is the law of the land, and that later addition in 1991 is not. They could rely on the Equal Protection Clause in the Constitution, and there are tones of precedents supporting this decision.

After all, an idea that people should be treated differently has no basis in the Constitution.

"Title VII of the Civil Rights Act of 1964"

Precedent has never provided the blanket rule you desire.

And, people are being treated the same here. A disparate impact is a problem, so everyone has to follow a test scheme that avoids it. You can imagine an inner city where this would hurt blacks, since the rejected test favors residents or whatever who are disproportionately black.

Of course, people are treated differently -- when appropriate -- all the time. For instance, different states have different age requirements for various fairly important things, including marriage. Similarly, you can "discriminate" against people for various reasons ... the law in question holds certain criteria are illegitimate. Thus, a job can hire by looks, but not race.

-j

The original, famous Civil Rights legislation. Surely the activist courts ruled AGAINST it, but it's never late to re-affirm its validity.

The fact you don't agree with my and the Court's interpretation of it does not mean me or others or the justices (including those that joined Ricci and did not decide that way either) did not read it. Or, the relevant part of a rather long statute (which was later amended).

I also don't know what "activist" means, since apparently it means upholding congressional laws you don't like. It seems to mean that you don't like the results, which makes it rather vanilla.

-j

Take original 1963 Title VII and quote any part of it which allows discrimination based on race, aka affirmative action.

When you find out that such parts do not exist, you should concede that all laws and regulations which promoted it, and all court decisions were unconstitutional.

It's fairly simple, you know.

1963 law was amended in '91. And The Court refused to rule as unconstitutional said amendment.

Hence that part of the law also stands equally. And yet Kennedy's controlling opinion makes up whole new clauses of law to be added to that law with no Constitutional justification.

That's a rather simple analysis, one that even you can follow, but choose not to.

I don't know why you keep on saying '1963' when it is dated 1964.

Anyway, from the Civil Rights Act of 1964:

No Government contract, or portion thereof, with any employer, shall be denied, withheld, terminated, or suspended, by any agency or officer of the United States under any equal employment opportunity law or order, where such employer has an affirmative action plan which has previously been accepted by the Government

So, it's not that "fairly simple." Affirmative action by definition was not "also known as" illegitimate discrimination. Thus, the agency tooled with enforcing the legislation used affirmative action in various cases just like the feds used affirmative action before it was passed in various cases. Likewise, the act specifically okays preferential treatment for Native Americans. Also, we have this:

An unlawful employment practice based on disparate impact is established under this subchapter only if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity [etc.]

A disparate impact, yet again, was the concern in this litigation. Degme has explained the complexity of the use of "discrimination," as has the Supreme Court up to Ricci. Again, it is not as "fairly simple" as you make it.

You didn't clarify your use of "activism" either.

-j

The discourse here was excellent and reinforces the point I was trying to make, that is, law is ambiguous enough, and complex enough that learned people consistently reach different conclusions. I think that's reflected in the closeness of a 5 to 4 ruling.

The whole time I was reading this article I kept thinking, "but wait, they were saying Sotamayor was the activisit judge". The article made a reasonable case that in fact Kenndy was the activist.

But at the end of the day.....this is what judges do. And to the one poster's comment above that implies Title VII itself is unconstitutional, all I can say is....Kennedy has his chance to correct that with this ruling and he chose not to.

Readabook:

The discourse here was excellent and reinforces the point I was trying to make, that is, law is ambiguous enough, and complex enough that learned people consistently reach different conclusions. I think that's reflected in the closeness of a 5 to 4 ruling.

The whole time I was reading this article I kept thinking, "but wait, they were saying Sotamayor was the activisit judge". The article made a reasonable case that in fact Kenndy was the activist.

But at the end of the day.....this is what judges do. And to the one poster's comment above that implies Title VII itself is unconstitutional, all I can say is....Kennedy has his chance to correct that with this ruling and he chose not to.

I don't think that this really makes a case for the law being ambiguous. It DOES make a strong case that "activism" is in no way restricted to the "left". Scalia and Thomas particularly are ones who's opinions can almost 100% be predicted by their personal belief systems (catholic, authoritiarian, economically pro-business anti-consumer). And in this case Kennedy IS being "activist".

Kennedy's opinion isn't a reading of the law or the Constitution, it is the creation of new law out of whole cloth. That's not an "ambiguity in the law" - that's an imposition of belief. Belief that has its genesis in being raised in a culture where white male priviledge was not only legal, but legally enforced.

I think anyone with an average IQ and at least a passing understanding of the issues before the Supreme Court knows "activist judge" is just a coded way of saying "liberal." This decision is definitely activist, if we accept "activist" involves using the power of the bench to modify the law.

Modifying the law isn't inherently activist either. Modifying the law BASE ON IDEOLOGY and not the Constitution is judicial activism.

And that is exactly what Kennedy did here.

degsme:

Modifying the law isn't inherently activist either. Modifying the law BASE ON IDEOLOGY and not the Constitution is judicial activism.

And that is exactly what Kennedy did here.

Except the law itself didn't change.