sotomayor, ricci and "judicial activism"

Today Sonya Sotomayor was sworn in as the 111th Justice of the US Supreme Court and its first Hispanic member. (Of the previous 110, all but four were white males.) She was confirmed by the Senate on Thursday by a vote of 68 to 31. The Republican opposition to her confirmation (no Democratic Senator voted against her confirmation) was based on the notion that she is a “racist” and a “judicial activist.”

Those accusations came together in the case of Ricci v. DeStefano. It’s worth taking a look at that case both for what it says about Justice Sotomayor and what it says about the concept of “judicial activism.”

First of all, it should be said that Ricci was a hard case and there is an old saying that, “hard cases make bad law.” It is not surprising that the 23 federal judges (including the nine US Supreme Court Justices, thirteen Second Circuit judges and one district court judge) who ruled on the case split 12-11 (with Judge Sotomayor in the majority). I won’t try to go into all the factual detail of the Ricci case. But the law is relatively clear – or at least it was before the Supreme Court’s ruling in Ricci.

The Ricci case was not an affirmative action case. It was a case brought under Title VII of the Civil Rights Act of 1964 which prohibits discrimination in employment. In 1971, in Griggs v. Duke, the US Supreme Court ruled that, because it is not always possible to prove discriminatory intent, Title VII prohibits an employment test with a “disparate impact” on members of a protected class unless that test is a “reasonable measure of job performance” regardless of actual intent to discriminate. The burden is on the employer to produce evidence that the test is “job related for the position in question and consistent with business necessity.” (The “disparate impact” test was later codified by the Civil Rights Act of 1991.)

That was the law prior to Ricci that Judge Sotomayor was bound to uphold as an appeals court judge.

Let’s take a relatively easy set of facts. An employer is seeking to promote people into sales management positions. He has noticed that all his best sales managers in the past have been excellent golfers. He concludes that the social skills developed on the golf course and the discipline and concentration required to master the game are good measures of probable success in sales. So he decides to promote sales people based on how they do in a golf tournament. It turns out that all the best golfers are white men. This employment test had a “disparate impact” on women and minorities and it’s unlikely the employer could justify it as a “reasonable measure of job performance.” He would probably lose a Title VII suit.

So let’s say after the employer sees the results of the golf tournament he (or his lawyer) realizes that he had probably made a mistake and that the golf tournament was a bad employment test. So he decides not to promote anyone based on their golf scores and instead to come up with a new test. But before he can come up with a new test and before he promotes anyone, the good golfers sue him under Title VII claiming “reverse discrimination” and that they are legally entitled to promotions. Now the employer is really in a tough position. If he uses the results of the golf tournament to promote the white men, the women and minorities may sue him and almost certainly would a Title VII suit. But if he doesn’t, the white men will pursue their suit against him under the same statute. Legally, is the employer free to disregard the results of the golf tournament and start over before anyone was promoted? Or did the white golfers acquire some kind of vested right to promotion once the tournament was conducted?

That is basically the legal question in Ricci, but with a harder set of facts than my example. In my example, it was almost certain that the employer would lose a Title VII suit challenging the employment test. In Ricci, it was less clear that the City of New Haven would lose a suit challenging the written test it used for the promotion of firefighters. But the corporation counsel for New Haven thought it was likely they would be sued and that they might lose, so he advised the City to discard the test and start over with a better measure of job performance. That was not an unfounded conclusion. As Slate’s Emily Bazelon put it:

In other situations like this, minority candidates have successfully sued based on the long-recognized legal theory that a test that has a disparate impact—it affects one racial group more than others—must truly be job-related in order to be legal. You can see why New Haven's black firefighters might have done just that. Why promote firefighters based on a written test rather than their performance in the field? Why favor multiple-choice questions over evaluations of leadership and execution? It's like granting a driver's license based solely on the written test, only with much higher stakes.

But when the City discarded the test results, the white firefighters who would have been promoted based on the test results sued. The legal question was whether the City was free, on its own, to discard the test results and start over before anyone had been promoted. Was the City was bound by the test results unless or until it lost a Title VII suit challenging the test results? Did the white firefighters acquire some kind of vested right to promotion once the test was administered and without regard to whatever alternative test for promotion the City might subsequently adopt?

Under prior Second Circuit precedent, it was pretty clear that the City of New Haven could decide for itself to start over. Under this precedent, the intent to remedy a disparate impact is not equivalent to intent to discriminate against non-minority applicants. New Haven’s decision to set aside the test results was race-neutral in the sense that all the test results were set aside, no one was given a promotion and all firefighters of every race would have the same opportunity to participate in whatever selection process was ultimately adopted. There was no racial quota or racial set-aside where candidates were treated differently based on their race.

The Supreme Court overturned the Second Circuit in the Ricci case and ruled that the City of New Haven was guilty of unlawful racial discrimination. The 5-4 split fell along the usual “conservative/liberal” divide. Justice Kennedy writing for the majority ruled that setting aside employment test results because they have a disparate racial impact itself constitutes racial discrimination. Voiding the test results was “disparate treatment” based on race. This set up a conflict between two different forms of discrimination under Title VII – “disparate treatment” (i.e., overt racial discrimination) versus “disparate impact” (i.e., implicit racial discrimination). According to Kennedy, the former trumps the latter unless the employer can show a “strong basis in evidence” that it would be subject to disparate-impact liability if it did not discard the test results. (Justice Scalia would have gone further and invalidated the “disparate impact” test of the 1991 Civil Rights Act altogether under the Equal Protection Clause of the Constitution.)

In dissent, Justice Ginsburg found that the white firefighters, “had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results.” According to Ginsburg and the other dissenters, an employer who is engaged in a reasonable effort to comply with Congress’s prohibition against employment practices that have a “disparate impact” does not violate the “disparate treatment” prohibition if it has “good cause” to believe the practices “would not withstand examination for business necessity” (the statutory test).

As a legal matter, the difference between the majority and the dissenters in Ricci boils down to whether the employer has a “strong basis in evidence” for believing it would be subject to disparate impact liability if it didn’t discard the test results versus whether it has “good cause” for such a belief. That doesn’t sound like a very substantial difference. But the majority test leaves employers in a difficult position once they discover that a test has a disparate impact. The “strong basis in evidence” test is a tough one to meet and doesn’t give employers much maneuvering room.

Perhaps the biggest weakness – and the most “activist” element – of the majority decision is the finding of liability on the part of the City even before it had a chance to adopt new selection criteria and before anyone had been promoted. According to the majority, the rights of the white firefighters to promotion vested as soon as the test was administered. Normal considerations of judicial restraint and “ripeness” would have had the court wait until the City had actually promoted someone before deciding that someone else had been illegally denied a promotion. The white firefighters who brought suit very well might have been promoted under whatever criteria the City adopted, making the litigation moot.

Under the majority test in Ricci employers who realize their employment practices have a disparate impact and conclude that those practices are less than ideal could end up getting sued – and found liable – regardless of what they do in response. The dissenter’s test gives employers the benefit of the doubt to work matters out for themselves as long as there is “good cause” for believing they might incur liability for a disparate impact. The dissenters would also wait to see what the employer actually decides to do, and who is impacted, before finding the employer liable for illegal discrimination.

It is worth noting that the various opinions in Ricci ran to over 90 pages. Kennedy, Alito, and Ginsburg all delved deeply into the facts of the case. As I said, “hard cases make bad law,” and this was a hard case. The majority, concurring and dissenting opinions are all persuasive. But I would have joined the dissent for practical legal reasons.

The majority opinion leaves employers in a difficult “damned-if-you-do/damned-if-you-don’t” position where they are liable to end up in court regardless of what they do. In that sense, the majority opinion is highly impractical and almost certain to result in more employment-related discrimination litigation. I would hate to be an employer trying to navigate the narrow isthmus of legal behavior defined by the majority test. How you feel emotionally about this case depends largely on how you read the facts. But do you really want a legal test that requires an in-depth examination of the facts of each case by judges and juries – even before an employer makes a final decision? This is exactly the kind of case that calls for judicial restraint rather than having courts second-guess employment decisions even before they are final.

The white New Haven firefighters had a sympathetic case. As the Second Circuit panel that included Judge Sotomayor noted:

In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

It is easy to feel “empathy” with Ricci and the other white firefighters. But in this case, I think practicality trumps empathy.

And that is the ultimate irony of this case in the context of the Sotomayor confirmation fight. Sotomayor’s detractors fear she will decide cases based on “empathy” over the law. Yet in this case she is damned for deciding on the basis of the law rather than empathy. There was Second Circuit precedent right on point (Hayden v. Count of Nassau and Bushey v. New York State Civil Service Commission). Disregarding those precedents and deciding Ricci based on “feelings” about the facts of that case would have been the very “judicial activism” conservatives supposedly decry.

Of course, those who have been using the Ricci case to bludgeon Sotomayor really don’t care about the legal issues raised in the case. Rather, the case was picked out from the hundreds she has decided in order to make the case that Sotomayor hates white people and to inflame racial emotions. (I dealt with those charges of racism in my previous post, “serious bad craziness”.)

But the Ricci case does raise the whole question of what is “judicial activism” – the sin of which all “liberal” judges are accused.

Probably the most common description of “judicial activism” is judges substituting their judgment for that of elected officials by striking down laws or regulations. By that measure, it is the “conservatives” on the Supreme Court who are the most “activist.”

Back in 2005, two Yale Law School scholars looked at all the rulings of the court as it existed after Ginsburg and Breyer joined the Court in 1994 and prior to Roberts and Alito joining that year. By their count, the Court upheld or struck down 64 Congressional provisions during that time. They looked at how each justice ruled in each of those cases, regardless of whether they were in the majority or in dissent. They found a wide variance among the justices when it came to their willingness to strike down an act of Congress:

Justice Clarence Thomas, appointed by President George H. W. Bush, was the most inclined, voting to invalidate 65.63 percent of those laws; Justice Stephen Breyer, appointed by President Bill Clinton, was the least, voting to invalidate 28.13 percent. The tally for all the justices appears below.

Thomas 65.63 %

Kennedy 64.06 %

Scalia 56.25 %

Rehnquist 46.88 %

O’Connor 46.77 %

Souter 42.19 %

Stevens 39.34 %

Ginsburg 39.06 %

Breyer 28.13 %

One conclusion our data suggests is that those justices often considered more "liberal" - Justices Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens - vote least frequently to overturn Congressional statutes, while those often labeled "conservative" vote more frequently to do so. At least by this measure (others are possible, of course), the latter group is the most activist.

Pretty much the same conclusion was reached in a study undertaken by Harvard Law School professor Cass Sunstein and University of Chicago economist and law professor Thomas Miles. Instead of looking at the Supreme Court striking down acts of Congress they looked at the Court’s invalidation of agency actions:

It turns out that Breyer wins the award for Judicial Restraint. Surprisingly, the award for Judicial Activism goes to . . . Justice Scalia. Here are the results:

Activism and on the Supreme Court

Rate of upholding agency decisions (percentage
points)

Breyer 82
Souter 77
Ginsburg 74
Stevens 71
O’Connor 68
Kennedy 67
Rehnquist 64
Thomas 54
Scalia 52

Of course, there may be good reasons for striking down an act of Congress or an agency action. But it is nonetheless “judicial activism,” as that term is most often used.

I should disclose that Stephen Breyer was my administrative law professor. And I am not at all surprised that he is the least activist justice on the Supreme Court. He is a process-oriented guy who tends to be deferential to the other branches of government. He is almost certainly the justice most inclined to sign on to a result that he personally disagrees with as a substantive matter but nonetheless feels compelled to find as a matter of law. He is not ideological or results-oriented – unlike, for example, Scalia and Thomas. (I expect Sotomayor will be much like Breyer and will actually be more conservative than the Republican appointee, Souter, she is replacing.)

By contrast with Breyer, Scalia is an ideologue who is positively eager to reach out and decide cases that will steer the law in his preferred direction. And that gets to another element of “judicial activism” – the extent to which a justice actively seeks to decide broad legal issues rather than ruling narrowly on the specific issues raised in a particular case. (You will recall from the Ricci case above, for example, that Scalia wanted to go further than any of the other justices and find the “disparate impact” test to be unconstitutional.)

In this sense, the current “conservative” majority on the Supreme Court is very “activist.” I will give one example from personal experience.

I am on the board of American Rivers. Back in 2005, we were surprised when the Supreme Court agreed to hear a case, Rapanos v. United States, challenging certain regulations under the Clean Water Act. We were surprised because the case did not present the kind of significant unsettled legal question that would typically find its way to the Supreme Court. To the contrary, the law at issue seemed to have been well-settled for 30 years. The only possible reason for taking the case, we feared, would be that the activist “conservatives” on the court wanted to reverse that law. As it turned out, we were right.

The appellant in Rapanos was a developer who engaged in particularly outrageous defiance of the law by filling in wetlands for a shopping center without even applying for the permit that the state and even his own wetlands consultant said was required. Rapanos threatened to “destroy” his consultant if he didn’t destroy his report, he prevented state inspectors from entering his land, and he ignored cease and desist orders. He engaged in the same behavior at two other sites. He was convicted of two felonies as a result. The “conservative” majority of the Court reversed those convictions and in the process gutted the wetlands protections of the Clean Water Act. The majority effectively overruled a prior Supreme Court precedent right on point (US v. Riverside Bayview Homes) and threw the law into disarray, making enforcement of the Act in each case depend on a complex hydrological study of the “nexus” of the wetland to “navigable waters.” The practical result was to make much of the wetland protections of the Clean Water Act effectively unenforceable.

The “conservative” activist majority of the Court has been so aggressive in seeking to reverse existing environmental law that no environmentalist in his or her right mind would appeal a case to the Supreme Court today. The New York Times recently had a good piece on this subject:

The Supreme Court heard five environmental law cases in the term that ended Monday, and environmental groups lost every time. It was, said Richard J. Lazarus, a director of the Supreme Court Institute at Georgetown University, “the worst term ever” for environmental interests.

The big change resulted from Justice Alito, a rigidly-doctrinaire “conservative”, replacing Justice O’Connor, who grew up on a ranch in Arizona and New Mexico and tended to view environmental law fairly even-handedly.

This reflects a particularly disturbing element of the “judicial activism” on the current Court, which is the ideological predictability of at least the four most “conservative” members of the Court. Justice Sotomayor was criticized for noting that her background and life experiences would help her make better decisions on the Court. This was taken by her opponents as meaning she would decide cases based on her subjective preferences rather than based on the law. Yet Sotomayor’s observation was no different than that made by others, including the last justice to be confirmed, Sam Alito, who said at his confirmation hearings:

…[W]hen a case comes before me involving, let's say, someone who is an immigrant -- and we get an awful lot of immigration cases and naturalization cases -- I can't help but think of my own ancestors, because it wasn't that long ago when they were in that position.

…[W]hen I look at those cases, I have to say to myself, and I do say to myself, "You know, this could be your grandfather, this could be your grandmother. They were not citizens at one time, and they were people who came to this country."

…[W]hen I get a case about discrimination, I have to think about people in my own family who suffered discrimination because of their ethnic background or because of religion or because of gender. And I do take that into account.

Justice Alito said that he thinks about “people in my own family” when he hears a discrimination case. Does that mean he was biased in favor of the white Italian-American plaintiff in the Ricci discrimination case?

The implication in much of the attacks on Justice Sotomayor is that the “neutral” state of mind is that of the white male. Yet the most predictable member of the current court is probably Chief Justice Roberts. He spent his career as a corporate lawyer and can be relied upon to rule in favor of corporate interests whenever they are stake before the Court. Indeed, you can pretty much predict how Roberts will rule based on the identity of the parties alone. Back in May, James Tobin had an excellent article on Roberts in The New Yorker, where he observes:

After four years on the Court, however, Roberts’s record is not that of a humble
moderate but, rather, that of a doctrinaire conservative. The kind of humility
that Roberts favors reflects a view that the Court should almost always defer to
the existing power relationships in society. In every major case since he became
the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution
over the defendant, the state over the condemned, the executive branch over the
legislative, and the corporate defendant over the individual plaintiff. Even
more than Scalia, who has embodied judicial conservatism during a generation of
service on the Supreme Court, Roberts has served the interests, and reflected
the values, of the contemporary Republican Party.

What does it say when you can predict how a justice will rule based almost entirely based on the identity of the parties to a case? Roberts could probably benefit from the perspective of a “wise Latina” in the Court’s deliberations.

It was Roberts during his own confirmation hearings who helped create the myth of the justice as an “umpire” who just “calls balls and strikes.” That assumes, among other things, that the law is always clear. Anyone who is familiar with the legislative process, for example, knows well that the language of a statute is not always clear and self-executing. Often, ambiguity is the intentional result of a legislative compromise. A good example of ambiguity in statutory interpretation is the infamous Lilly Ledbetter case.

In that case (Ledbetter v. Goodyear Tire & Rubber Co.) a jury found that Ms. Ledbetter had been the subject of pay discrimination for almost 20 years. She only found out that she had been paid between 15 and 40% less than her male counterparts when confidential pay information was provided to her anonymously by a co-worker. The “conservative” majority of the Supreme Court overturned the jury award in her favor based on the statute of limitations in Title VII of the Civil Rights Act, which says, "A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment practice occurred.” In the case of on-going discrimination taking place over almost 20 years, does that mean the case must be brought within 180 days of when the discrimination first occurred? When it last occurred? What if the employee had no way of knowing the discrimination was taking place at the time because the payroll information was kept confidential by the employer? Does it mean the plaintiff can only be awarded damages for the pay discrimination occurring within 180 days of the time the suit was filed? The statute on its face doesn’t answer those questions. It’s not a simple matter of the “umpire” calling “balls and strikes.”

There is a well-established principle of statutory interpretation that if there are two (or more) possible interpretations of a statute, the judge should adopt the interpretation which is most consistent with, and that would further, the purposes of the statute over another interpretation which would frustrate the objectives of the statute or render it meaningless. In the Ledbetter case, the “conservative” majority required that a suit be brought within 180 days of the time a discriminatory employment act was first adopted, rather than when it was last applicable. The practical effect was to make it impossible to sue under the Act in cases like that of Lilly Ledbetter.

Justice Ginsburg noted in her dissent (joined by Breyer, Souter and Stevens), that "[p]ay disparities often occur, as they did in Ledbetter's case, in small increments; only over time is there strong cause to suspect that discrimination is at work." Moreover, the victim of the pay discrimination often has no way of knowing that it is taking place. Justice Ginsburg was so upset with the majority decision that she took the extraordinary step of reading her dissent aloud from the bench. She subsequently went public with her growing frustration at being the only woman on the Supreme Court, citing the Ledbetter case as among those that would have benefitted from the perspective of another woman.

According the author of the majority opinion in Ledbetter, Justice Alito, the case was easily decided based on the statute “as written.” I guess that would be the “neutral” white male perspective. Congress disagreed and, in the first piece of legislation signed into law by President Obama, reversed the Court. (Attempts are also being made to reverse the Court’s gutting of the Clean Water Act in the Rapanos case.) This is another case where the perspective of a “wise Latina” might have been helpful.

I won’t rehash Bush v. Gore other than to note that it is certainly the most “activist” Supreme Court decision of my lifetime – perhaps in the nation’s history. Never before had the Court taken upon itself to decide the ultimate “political question” – the outcome of a presidential election. To do so, it had to violate one of the central tenets of states’ rights, which is that a state’s supreme court is the final arbiter of the meaning of that state’s law. It also created an entirely new Equal Protection doctrine just for that case, which the “conservative” majority went on to say it couldn’t see applying to any other set of facts in the future.

E.J. Dionne recently had an excellent piece (“The Real Court Radicals”) in the Washington Post on the activism of the Supreme Court’s current “conservative” majority. He points to latest “activist” move by that majority – the likely reversal of almost 100 years of restrictions on corporate activity in elections:

[T]he argument that began 40 years ago over the political and philosophical direction of the judiciary has reached a critical moment. Under Chief Justice John Roberts, conservatives have finally established a majority on the court that is beginning to work its will.

Republican senators know that Sotomayor's accession to the high court will not change this, since she is replacing Justice David Souter, a member of the court's liberal minority. But they want to use the hearings to paint the moderately liberal Sotomayor as, at best, the outer limit of what is acceptable on the bench to justify the new conservative activism that is about to become the rule.

"They have more or less given up on defeating her, so they are going to engage in a framing exercise," Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary
Committee, said in an interview. "They're trying to define a Republican worldview imported into the judiciary as the judicial norm for the country."

The goal, Whitehouse added, "is to define the political ideology" of the new conservative judiciary as "representing the mainstream and to tarnish any judges
who are outside that mark."

If you wonder what judicial activism looks like, consider one of the court's final moves in its spring term.

The justices had before them a simple case, involving a group called Citizens United that could have been disposed of on narrow grounds. The organization had asked to be exempt from the restrictions embodied in the 2002 McCain-Feingold campaign-finance law for a movie critical of Hillary Clinton that it produced during last year's
presidential campaign. Citizens United says it should not have to disclose who paid for the film.

Rather than decide the case before it, the court engaged in a remarkable exercise of judicial overreach. It postponed its decision, called for new briefs and scheduled a hearing this September on the broader question of whether corporations should be allowed to spend money to elect or defeat particular candidates.

What the court was saying was that it wanted to revisit a 19-year-old precedent that barred such corporate interference in the electoral process. That 1990 ruling upheld what has been the law of the land since 1947, when the Taft-Hartley Act banned independent expenditures by both corporations and labor unions.

To get a sense of just how extreme (and, yes, activist) such an approach would be, consider that laws restricting corporate activity in elections go all the way back to the Tillman Act of 1907, which prohibited corporations from giving directly to political campaigns.

It is truly frightening that a conservative Supreme Court is seriously considering
overturning a century-old tradition at the very moment the financial crisis has
brought home the terrible effects of excessive corporate influence on politics.

In the deregulatory wave of the 1980s and '90s, Congress was clearly too solicitous to the demands of finance. Why take a step now that would give corporations even more opportunity to buy influence? With the political winds shifting, do conservatives on the court see an opportunity to fight the trends against their side by altering the rules of the electoral game?

Such an "appalling" ruling, Schumer said in an interview, "would have more political
significance than any case since Bush v. Gore." He added: "It would dramatically
change America at a time when people are feeling that the special interests have
too much influence and the middle class doesn't have enough. It would exacerbate
both of these conditions."

So when conservatives try to paint Sotomayor as some sort of radical, consider that the real radicals are those who now hold a majority on the Supreme Court. In this battle, it is she, not her critics, who represents moderation and judicial restraint.

The Citizens United case, to be argued next month before the Court session formally begins in October, is the first case Justice Sotomayor will hear on the Court. I, for one, am glad we will have a “wise Latina” to help counterbalance the “judicial activists” on the Court.