Ricci v. DeStafano - Evidence that Judge Sotomayor is outside the mainstream of legal thinking?

The recent Ricci Decision received a lot of press, and not simply because it was another 5-4 decision on a controversial topic: how, whether, and when the disparate impact of employer practices can be used to establish discrimination under the Title VII of the Civil Rights Act of 1964. The “real” issue, as several commentators saw it, was the decision overturned a per curium decision, in which Judge Sotomayor participated. In affirming the Distirct Court’s ruling, the panel on which Judge Sotomayor sat, let stand a decision which had barred white firefighters, who had successfully passed an advancement exam, from receiving their promotions. Interestingly, the issue framed by some commentators was whether Judge Sotomayor’s decision to participate in per curium affirmation of the District Court exposed her as “extreme” or whether it exposed her as a judge who follows precedent?

As background, the theory of disparate impact holds that an employer may be liable for discrimination even if an employer is not motivated by discriminatory intent. In 1971, the Supreme Court first described the disparate impact theory in Griggs v. Duke Power Co., 401 U.S. 424, 431-2 (1971): Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation. The touchstone is business necessity. . . . [G]ood intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability." In 1989, the Supreme Court lowered the employer’s burden from proving business necessity to merely producing evidence of business justification. Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 657 (1989). The Civil Rights Act of 1991 reinstated the burden of proof on the employer to show business necessity once the plaintiff has demonstrated a prima facie case of disparate impact.

The Court in Ricci, held that the defendant violated Title VII of the Civil Rights Act of 1964 by setting aside test results that plaintiffs passed based solely on a fear that certifying the test, would invite a disparate impact lawsuit. By not certifying the tests, those who did well were not promoted and, according to the Ricci Court, subject to illegal discrimination based on race.

So what does Judge Sotomayor’s decision reveal about her place in the legal continuum? I argue that it reveals absolutely nothing about the soon-to-be Justice Sotomayor. The fact that the current Supreme Court split 5-4 on this case, itself, shows that Judge Sotomayor is not “outside” of current legal thinking. It also shows that Judge Sotomayor’s (and her two fellow appellate court judges) reliance on existing precedent to affirm the District Court was not lacking foundation. Although the short per curium opinion did not provide detail, it seems that the three judges of the Circuit Court believed that the disparate impact on racial minorities of the firefighter exam was so unambiguous as to need to further analysis.

And, here, perhaps is where the real issue lies. Judge Sotomayor had before her one of the more controversial legal issues of our time, and one which routinely splits judges along “liberal” and “conservative” lines. But instead of authoring or signing onto a long opinion, carefully analyzing this complex issue -- and there by expressly revealing where she stands on this issue -- Judge Sotomoayer and her fellow judges simply decided the facts and law before them were clear, and declined to even draft a signed opinion. That decision denied both the left and the right from obtaining detailed information about where she stands on this issue, and that is what is so frustrating to commentators who would like to make the Ricci decision tell us more than it does about Judge Sotomayor.