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.

Related posts

• Upcoming Cases to Watch (June 17, 2009)
• The Upcoming Weeks (May 16, 2009)
• State of the Docket (May 26, 2009)

Last week, the court granted review in Ricci v. DeStefano.

In 2003, the city of New Haven attempted to promote a number of firefighters to the ranks of captain and lieutenant based on a number of examinations and performance-related indicators. After reviewing the results, the city opted to leave the recently vacated positions unfilled because the individuals recommended by the examinations were almost all white. They refused to promote any of the firefighters in line with “voluntary compliance with Title VII [of the Civil Rights Act of 1964].” The validity and objectivity of the examination methods used to recommend promotion are undisputed.

Frank Ricci and several of the other recommended officers filed suit alleging violation of their rights stated in Title VII and the Equal Protection Clause of the Fourteenth Amendment. The District Court delivered summary judgement in favor of the city, holding that:

[respondents] acted based on the following concerns: that the test had a statistically adverse impact on African-American and Hispanic examinees; that promoting off this list would undermine their goal of diversity in the Fire Department and would fail to de- velop managerial role models for aspiring firefighters; that it would subject the City to public criticism; and that it would likely subject the City to Title VII lawsuits from minority applicants that, for political reasons, the City did not want to defend.

In the Second Circuit, a three-judge panel voted to uphold the lower court’s decision, finding that “[we] are not unsympathetic to the plaintiffs’ expression of frustration … [but] it simply does not follow that he has a viable Title VII claim.” One of Barack Obama’s oft-mentioned potential Supreme Court nominees, Sonia Sotomayor, sat on the panel and voted for the 3-0 decision.

A few months later, the panel in the Second Circuit suddenly withdrew their opinion and refilled it as a nearly-identical per curiam opinion. A judge on the Court requested, sua sponte, a poll about hearing the case en banc. The only difference between the majority opinion for the panel and the per curiam opinion is the absence of the word ‘substantially’ in the latter from the first sentence of the opinion: “We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.”

The judges voted 7-6 against rehearing en banc and issued an order (here) which included two concurring opinions and one dissenting opinion.

The question before the court is now whether or not the City of New Haven had sufficient justification to reject the results of the exam that would have promoted mostly-white candidates to the positions of lieutenant and captain. The city claims that it used race-neutral analysis (they didn’t want too many candidates of the same race) to formulate their position but the firefighters who filed suit argue that the City’s system was more like a quota (Gratz).

Petitioners also argue that the district court erred in refusing to apply strict scrutiny to the case. The district court held that because no one had been promoted to the positions in question, everyone was treated equally and there was no race-based depravation to trigger the Adarand strict scrutiny requirement.

The results of this case shouldn’t be surprising. Chief Justice Roberts and Justices Scalia, Thomas, and Alito will almost certainly side with the firefighters. Justice Kennedy has almost always ruled against affirmative action in cases before this court and his general position on the equal protection clause is unsympathetic to programs designed to help minorities. Justices Stevens, Souter, Ginsburg, and Breyer will likely side with the City and vote to uphold the City’s ability to enforce it’s own affirmative action policy.

Related posts

• Thoughts on Pleseant Grove v. Summum (April 11, 2008)
• Supreme Court Agrees To Hear DC Gun Case (November 20, 2007)
• Northwest Austin and the Forthcoming Ricci Decision (June 24, 2009)