Kennedy Keeps Amblin’ to the Right

Ever since Sandra Day O’Conner left SCOTUS,  Justice Kennedy appears firmly to have found his place with the conservative ideologues.  (May the greater ethos protect us from what is further to come). What is most interesting to me about the recent decision known as the “white firefighter’s reverse discrimination cause”  (Ricci v. DeStefano) is that the same conservatives who decried judicial activism on the part of a left-leaning SCOTUS don’t appear to recognize the same imprint when it’s the conservatives actively push their own agenda.  This is an interesting decision and one that will make Sotomayor’s appointment to the court more even more eventful.  I’m hoping some of the lawyers among us will enlighten me further because this one’s out of area of expertise.  I only know that this is an important decision in many ways.

From the WSJ, and the piece Court Rules for White Firefighters . Kennedy writes for the majority.

The Supreme Court invalidated a Connecticut city’s decision to scrap the results of a firefighter exam after no black candidates scored high enough to ensure a promotion, a case that has been a lightning rod for high court nominee Sonia Sotomayor.

Justice Anthony Kennedy, writing the court’s 5-4 conservative majority, said the city of New Haven violated Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.

“Whatever the city’s ultimate aim — however well-intentioned or benevolent it might have seemed — the city made its employment decision because of race,” Justice Kennedy wrote. “The city rejected the test results solely because the higher scoring candidates were white.”

Justice Kennedy said an employer cannot throw out an exam unless there is strong evidence that the test was unfair to minorities. In New Haven’s case the evidence was quite the opposite, he wrote, as the city took specific steps to ensure that black and Hispanic firefighters were consulted in designing the questions and made up a majority of the interview panels that awarded 60% of the applicants’ scores.

Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito joined the opinion.

So the judicial activism irony is not lost on Glenn Greenwald.

For all the chatter about “judicial activism” and that dreadful Roberts metaphor of “a neutral umpire calling balls and strikes,” it is so striking how frequently conservative judges invalidate policies which conservatives dislike as a political matter.  Here we have the conservative wing of the Court declaring illegal the employment decisions of local government officials, who used a political approach — diversity — which conservatives dislike on policy grounds.  So often, the outcomes of the allegedly neutral conservative judges are completely consistent with (and aggressively advance) the political preferences of conservatives (Bush v. Gore being only the most obvious example).  Indeed, few things are rarer than conservatives Justices invalidating policies that conservatives like politically, or upholding policies they despise — the true test for whether one applies the law independently of political and outcome preferences.

I’m not an attorney and only want to provide a forum here for discussion, but I will add a few more links for those of you interested in following this important case.

The New Republic has some interesting analysis here. It focuses on the decisions and Sotomay0r. Again, Kennedy’s swing vote is the topic of interest.  The piece is written by Tom Goldstein the founder of SCOTUSblog.

I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a non-event. To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the Supreme Court takes a dramatically different view of the legal question. The Court indicates that the state of the law before today’s ruling was “a difficult inquiry,” and that its “holding today clarifies how Title VII applies.” It rejects the plaintiffs’ outright attack on the Second Circuit’s decision as “overly simplistic and too restrictive.”

Here’s some interesting  information on the Right Wing Spin from The Washington Monthly. Evidently, they just couldn’t wait to turn the ruling into a chance to attack Sotomayor.  And yes, the graphic above is my heading graphic on Skydancing showing the interplay between ladies justice and liberty.   I never miss an opportunity to use a great graphic that gets across the point of what something (like a ruling) should be.  That is especially true when we seem to be increasingly losing both justice and liberty, let alone the important links and interplay between them.

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