Daniel Larison Is Making Sense
I’m hard-pressed to find anything I disagree with in his latest post on Sonia Sotomayor. The key paragraph:
[T]he appeals court ruled against Ricci because it recognized that New Haven had tried to avoid a lawsuit that would have been possible and likely successful because of current law. In other words, the city tried to avoid falling afoul of the law, and the court did not penalize it for doing so. What is to blame in all of this is the law, rather than the judges who seem to have done what they were supposed to do. Indeed, what some people seem to have wanted to see Sotomayor do is to punish New Haven for trying to stay within the limits of the law, and for failing to do so she is declared to be an enemy of the rule of law. I submit that this doesn’t make a lot of sense.
If I recall correctly, the “disparate impact” standard under which New Haven feared being sued was originally created by the Court in decisions of the early 1970s, as a test to determine whether illegal discrimination had occurred under the Title VII of the 1964 Civil Rights Act. But this standard was written into statutory law – and, indeed, toughened – by the 1991 Civil Rights Act. The court in Ricci had no need to revisit the correctness of the standard, but if some future court chose to do so, it would not be revisiting precedent but seeking to invalidate an act of Congress – moreover, one clearly and plainly intended to enforce an amendment to the Constitution, as that amendment provides for. Such an act by the court might be right or wrong, but it’s practically the definition of judicial activism.
And, if I recall correctly, Jeffrey Rosen was extremely critical of Justice O’Connor’s jurisprudence regarding redistricting because it put the states in a judicially-created bind. If they ignored the need for minority representation, they were potentially in violation of the Voting Rights Act. But if they designed districts that were transparently created to lump African-American voters together regardless of geography or other factors, so as to ensure explicit representation for that segment of the population, O’Connor would reject that as also a violation. Race could – indeed, had to be – a factor, but couldn’t be the exclusive or, indeed, the predominant factor. Which meant, in practice, that a redistricting that was legal was one that passed Justice O’Connor’s “smell test,” which sounds not much like the rule of law, much more like the rule of (wo)man. If the Court overturns and finds for the plaintiff in Ricci, and does so without explicitly declaring chunks of the Civil Rights Acts of 1991 and 1964 to be unconstitutional (which I find highly unlikely), wouldn’t it be putting employers into an analogous bind? If they don’t pay attention to the potentially discriminatory impact of their hiring practices, they’ll face litigation – but if they pay too much attention, they’ll also face litigation. And they’ll only be able to tell the difference between too little and too much by consulting Justice Kennedy. Right? It sounds an awful lot like Rosen wants the Court to do with affirmative action precisely what he said they ought not have done when it came to redistricting.
I want to be clear about two things.
First, I think the disparate impact standard is an honest attempt to address a real problem: the desire to ferret out racial and other forms of discrimination that do not boldly announce themselves to the world as such. I find it very hard to take claims that such discrimination does not exist; the better debate would be about the relative priority of rooting it out versus other policy goals, including other policy goals related to social justice.
Second, because of the persistent measured gaps in average general intelligence between different groups (that they are persistent is a simple fact; whether they are inherent is still a much more speculative question), the disparate impact standard makes it extremely difficult to hire based explicitly on relative measured intelligence. To the extent that we believe that selecting on that basis is important (and we do seem to believe that when we choose who gets to serve in the armed forces, who gets into what college, indeed, pretty much every time we have to sort large numbers of people anonymously for positions that do not require specific skills), the disparate impact standard creates a real problem.
But it’s a policy problem. Weighing conflicting claims to justice and coming up with workable rules for adjudicating them that can be the basis of social consensus is what the political process is supposed to do. The courts are then supposed to apply those rules in specific cases in a way that provides reasonable predictability and is understood to be fair and just. If, as a society, we’re not happy with the way the rules work now, we should talk about how to change them and find a new set of rules that “work” better. To do that, we need to be able to say more, not less, so policing our language is counter-productive. By the same token, to do that we need to be able to hear more, not less – which means that liberal claims about Sotomayor’s background being a net-positive actually do have some teeth to them.
I think the counterargument is that:
(1) While a federal regulation might arguably require New Haven to discriminate against white candidates, (2) the US Constitution forbids it, except in limited circumstances that don’t apply here, and that a judge who sees anti-white discrimination as an offense would have at least set Ricci up with a better position to bring the issues to the Supreme Court for review.
(2) It’s questionable whether federal law even requires the discrimination that is alleged here. If I recall correctly, the EEOC regulation at issue states that if the racial group with the lowest success rate doesn’t succeed at least 80% as much as the racial group with the highest success rate, then the burden shifts to the employer to prove the test was designed and administered neutrally. New Haven threw out a test that appears to have been applied pretty well neutrally because they didn’t want to undergo the burden of defending their test, not because the law required them to.
It’s true that New Haven would have been smarter not to use a test as part of its officer promotions, or to use a test that almost everyone passes to weed out the worst 5% or so.
But they didn’t, so the question before Sotomayor was, essentially, does the Constitution forbid as discrimination throwing out a test because too many white people passed it, if the alternative would be burdensome for the state?
I guess one response could be that if the situation had been reversed — if New Haven had thrown out a test because everyone who passed it was black — then Sotomayor would presumably have found against the plaintiffs in that case too. That’s unknowable, but my guess is that many of the Sotomayor critics don’t believe it.
— J Mann · May 27, 03:34 PM · #
I find this discussion of the Ricci case interesting, though I have no qualifications to evaluate the competing claims. But certainly, if Sotomayor was applying a bad law, then she was acting according to the conservative principles of what a judge should do.
This…
I find problematic, if I read it correctly. There is the obvious reason, the implication that Judge Sotomayor is more qualified or able to discuss these issues by dint of her background than, say, Frank Ricci. There is also the issue that speaks against your (and Larison’s) argument that the Ricci case was rightly decided. You say that she was bound to act as she did by the law, and if we dislike the outcome, that is the fault of the law. If you are right, then I would agree she did the right thing.
Then you say (and again, forgive me if I misread) that her background is useful when discussing whether we should have such laws. But by your own reckoning, Sotomayor was obligated not to make such considerations from the bench, but only to consider whether the law had been properly applied. As a justice, by your earlier reckoning, such considerations have no place, regardless of whether Sotomayor’s life story would better inform them, which would seem to disqualify her background in considering the fitness of her jurisprudence.
— Blar · May 27, 04:07 PM · #
Basically what people who dislike the Ricci ruling wanted was some judicial activism:-)
Basically the same issue in Kelo. Further highlighting that when people don’t like a law they like activist judges just fine.
— eric k · May 27, 04:48 PM · #
“Further highlighting that when people don’t like a law they like activist judges just fine.”
It is a general rule that people will almost always favor correct outcome over correct proceedure.
— cw · May 27, 05:07 PM · #
“It is a general rule that people will almost always favor correct outcome over correct proceedure.”
Which is why so many have tried so hard to educate people that the ends do not justify the means.
Mike
— MBunge · May 27, 05:11 PM · #
cw,
in other words people like activist judges just fine…
— eric k · May 27, 05:13 PM · #
Good stuff Noah (until the last wimpy sentence). You and Larison are making sense of a complex case. Keep it up.
And everyone, the term “judicial activism” is problematic. The correct conservative approach to SC jurisprudence cannot hinge on this term. Nor can meaningful tu-quoque/hypocrisy accusations from liberals hinge on this term. As Matt Franck has pointed out there is such a thing as the wrongful non-use of judicial review. No-one would call that activism, but unless you’re committed to an extreme version of deference-to-the-legislative-branch, you wouldn’t want SC justices who “do” that.
— Carl Scott · May 27, 05:36 PM · #
A quick comment before I settle in for Game 5.
JMann writes:
I think you have the comparative levels of protection backwards. The Constitution via the Equal Protection Clause of the 14th forbids intentional discrimination. Title VII, on the other hand, forbids disparate impact without a business necessity, a standard which provides suspect classes much greater protection than the 14th Amend.
Ricci is kind of difficult to wrap your mind around, but the following is why I think you misstate the “counterargument”:
The plaintiffs alleged a Constitutional (14th Amendment Equal Protection) violation and/or a violation of Title VII (passed pursuant to Congress’s commerce powers) and/or some other stuff. In an unusual twist, the defendants used their efforts to comply with Title XII as their defense against the first, Constitutional allegation.
In an Equal Protection action, the plaintiff must first make a prima facie case of discriminatory intent. Once the prima facie case has been made, the burden shifts to the defendant to produce evidence showing that the accused activity was done for legitimate, non-discriminatory purposes. Here in this case, defendants claimed as their legitimate, non-discriminatory purpose a pressing desire to meet their obligations under Title XII of the Civil Rights Act.
Now here’s the thing. Once a defendant to an Equal Protection action produces evidence of a legitimate purpose, which the city did, the plaintiff has the burden to prove that the defendant’s proffered reason is actually a pretext to a discriminatory intent and is therefore unworthy of credence. If no material facts are in dispute which, if read in a light most favorable to plaintiff, could carry this burden of proof, then the Equal Protection claim is summarily dismissed and the case is no longer about Constitutional protections.
That’s what happened in Ricci. The plaintiff never submitted any evidence to dispute the city’s assertion that its purpose in ditching the tests was to comply with Title VII. Excerpt:
In other words, the plaintiffs couldn’t prove the Constitutional standard of discriminatory intent. “The intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants.” As the district court concluded, there was “a total absence of any evidence of discriminatory animus towards plaintiffs.”
As for the “disparate impact” claim under Title VII:
1) The plaintiffs had no evidence of disparate impact since a) all the tests were discarded, and b) under the City’s employment code no employee is entitled to a promotion.
2) Even if plaintiffs could show disparate impact, compliance with a federal statute is a legitimate business necessity.
Whatever Ricci is, it is most definitely not the silver bullet against Sotomayor.
— Sargent · May 28, 02:00 AM · #
Unfortunately, it appears from the LA Times that Sotomayor, like most liberal Democrats, is not in favor of forthright conversation on the issues that Mr. Millman raises, so his penultimate sentence is rather disingenuous. As on so many issues, what Democrats really want is for people like me to shut up and obey.
— y81 · May 28, 02:00 PM · #
Dear Noah:
Actually, the Seventh Circuit Court of Appeals already dealt with this bind on employers in the Biondo case about reverse discrimination against white firefighters in Chicago in 2004. As I wrote in April:
Employers find themselves in an absurd legal position. They are subject to civil service rules, civil rights laws, and the 14th Amendment that outlaw favoritism — and, simultaneously, to EEOC and Department of Justice regulations that mandate it.
This leads to even more pretzel logic. Thus New Haven claimed that it wasn’t discriminating against white firemen—it was just trying to avoid being sued for discriminating against blacks!
And, incredibly, the federal Second Circuit Court of Appeals bought that rationale by a 7-6 vote (with potential Obama Supreme Court nominee Sonia Sotomayor one of the seven).
The Second Circuit’s decision was all the more incredible because the distinguished judge Frank Easterbrook of the Seventh Circuit had already shot down the same circular logic in 2004, when Chicago tried it the Biondo case involving testing for promotion of Chicago firefighters.
Easterbrook incredulously asked:
“[T]he premise of the City’s argument is that [the EEOC] regulations supply a compelling governmental interest in making decisions based on race. How can that be? Then Congress or any federal agency could direct employers to adopt racial quotas, and the direction would be self-justifying: the need to comply with the law (or regulation) would be the compelling interest. Such a circular process would drain the equal protection clause of meaning.”
— Steve Sailer · May 28, 03:40 PM · #