Without going into whether today's decision is "right" or whether I agree with it, it would be a mistake to conclude that because Sotomayer's 2nd Circuit ruling was overturned that means that she was "wrong" or outside of the mainstream of judicial thinking. The lower court clearly followed precedent. Today's decision represents a clear departure in Title VII jurisprudence.

I'm not sure we can conclude that given the unusual dissent from the other members of the appeals court and the odd use of a per curiam opinion on something that was clearly not straight-forward.

News Flash girl: Nobody cares a wit whether or not you or I agree with the decision. It's a done deal.

I think she and the court may have been right regarding some esoteric legal stuff, but in the common sense obvious stuff they were way out in space.

I don't think it represents a departure. I think it represents an area that had never been decided.

So the 4 dissenting justices are also "out in space"? I'm simply saying that Sotomayer was well within the bounds of precedential jurisprudence, and four current members of the Supreme Court would have affirmed the 2nd Circuit's decision. I actually agree that the 2nd Cir should have issued a written opinion explaining their reasoning. But in any event, my point is simply that this decision does not necessarily indicate that Sotomayer is somehow completely out of the mainstream.

From what I've read of the dissenting opinion, they may very well be "out in space". Ginsberg is really starting to get under my skin.

Replacing Souter with another Ginsberg would be a bad call. I'm not saying that Sotomayor would be that case, but I'd like to find out.

peargirl:

So the 4 dissenting justices are also "out in space"? I'm simply saying that Sotomayer was well within the bounds of precedential jurisprudence, and four current members of the Supreme Court would have affirmed the 2nd Circuit's decision. I actually agree that the 2nd Cir should have issued a written opinion explaining their reasoning. But in any event, my point is simply that this decision does not necessarily indicate that Sotomayer is somehow completely out of the mainstream.

I agree. There had never been an impact vs. treatment case before. The court handed down a test that did not exist prior to the decision.

As I've said here many times, I'm not a lawyer so the "finer" points evade me. It's entirely possible that the 2nd Cir. decision was correct in it's narrow area and if so, perhaps it's hands were tied. But if that's the case and they were "forced" to avoid the real issues of the civil and constitutional rights of the parties, then the law sucks. On the other hand, if they were just too PC to address the real meat of the case, they she doesn't belong on the SC. I don't know the answer.

I've heard this "activist" title being tossed around. I don't believe it making new law from the bench so I'm more comforable with the court doing what it is required to do and letting the system sort it out - like it apparently did.

I've heard this "activist" title being tossed around. I don't believe it making new law from the bench so I'm more comforable with the court doing what it is required to do and letting the system sort it out - like it apparently did.

No it didn't. Read the opinions. The majority ignored Congress' clearly expressed intent, in the 1991 Civil Rights Act, to follow Duke Power. The Court imposed its own view on how disparate impact cases should be treated. They truly did make new law from the bench, in clear defiance of the law enacted by our elected representatives and signed into law by President GHW Bush.

peargirl: The real problem is that the per curiam opinion issued by the 2d Circuit panel that Judge Sotomeyer was on contained no analysis or "jurisprudence" whatsoever. It simply affirmed the decision of the district court. And even the four dissenters noted that the lower courts' reliance on the "intent" of New Haven was wrong and the matter should have been remanded for further proceedings (see note 10 of Justice Ginsburg's dissent).

Is Judge Sotomeyer "completely out of the mainstream"? The per curiam opinion by itself tells us nothing, really, on that score. But it does tell us that the panel as a whole failed to properly analyze the legal issues raised by the petitioners, and did not see fit to provide adequate attention to such an important matter. These are faults of care, and relatively minor ones at that, but she should expect to get some blowback over it in her confirmation hearings nonetheless.

I've already agreed on that point.

Why, because the lower court's all used precedent and the law to make their decisions (as Ginsburg aptly notes and applies in her dissent), as opposed to using "empathy" and "fairness" to find for Ricci (as Kennedy clearly indicates is his primary concern)?

I thought it was very unprofessional to let "empathy" get in the law of following the intent of the legislature when they make law?

I agree with this poster: Sotomayor ruled correctly, and the Supreme Court adopted a new standard to deal with a conflict between Title VII and the equal protection clause of the constitution. Previously, governments had come up with their own standard in deciding whether an instance of disparate impact justified doing away with the framework that created it. Today's decision just creates a standard to follow in making the same determination. It also found, incidentally, that New Haven did not meet this standard.

And to everyone who is complaining that the Court is making new law--welcome to constitutional jurisprudence!! Almost all of the key features of equal protection jurisprudence have been created out of the thin air by the Supreme Court in the past fifty years. This has not been a bad thing, but it is disingenuous to express outrage at the majority today when the Court in the past has come up with doctrines like strict scrutiny, intermediate scrutiny, and rational basis scrutiny to apply to equal protection fact patterns. All of it is made up. It just so happens that today, the conservatives manufactured the doctrine instead of the progressives. Go ahead and find it aggravating--I certainly do--but at least recognize that this is a time-honored tradition, and one that progressives frequently advocate.