The Court’s decision in Northwest Austin Municipal Utility District No. 1 v. Holder largely dodged the core constitutional issue in question and has forced me to wonder how the Court will handle a different, though similarly charged, issue in Ricci v. DeStefano. To refresh everyone on the facts in Ricci, a group of white firefighters was denied a promotion after a city decided that not enough black firefighters were eligible for promotion based on the results of a civil service exam.
The two opinions were written almost simultaneously and it would be difficult to imagine that each case wasn’t decided with the other in mind. In NWAMUDNO, the Court decided to punt on the most important issue, in Ricci, it will be much harder to avoid the core issues. Its hard to make any sort of prediction about what the VRA decision means for Ricci, but I think with the benefit of hindsight we will be able to compare the two opinions and come to some sort of understanding about the interplay between the two.
We first have to make some assumptions about the NWAMUDNO decision. Several scenarios may have played out in order to create the bizarrely unanimous criticism of the VRA but lets assume one of the most salacious. Justice Kennedy is initially the only Justice who wants to punt on the issue. Chief Justice Roberts shivers at the sight of a 4-4-1 opinion and decides to write the decision that would eventually be published to avoid forcing Justice Kennedy to sit down and decide the opinion “doesn’t write” and flipping to the liberal justices.
If Justice Kennedy really was the first, and still the only, Justice who truly wanted to punt, I think that would bode poorly for the city. The decision in NWAMUDNO was made only out of deference for a co-equal interpreter of the Constitution and I think the Court would not burden itself with that level of respect for a local civil service board mired in base racial politics. The court could be sending a very strong political message in Ricci about how comfortable it is with racial politics and further hint to Congress to get it’s act together.
If the Chief Justice, Justices Scalia, Kennedy, and Alito all wanted to punt on the issue and return it to Congress for further changes, the four liberal justices likely joined that opinion to send a message to Congress that they needed to change Section 5. There would have been five votes in favor of remanding regardless and the liberal justices knew a dissent from that would have been in vain.