FIRST ONE @ ONE FIRST

Cons Want it Both Ways in STBR

Posted in Case Reports, Law and Politics by Mike Sacks on June 17, 2010

No Bilski this morning, but Thomas did write the other remaining November case, so Stevens remains the prime candidate for majority author.

The Court did release its opinion in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection.  Early in the life of F1@1F, I flagged this case because it pits federalism against property rights, two traditionally conservative causes.  Turns out the Court’s conservative bloc – Roberts, Scalia, Thomas, and Alito – found the two concerns, in this case at least, reconcilable.

Scalia announced the opinion of the Court that the Florida Supreme Court did not commit a taking when it approved of an erosion-control plan that the plaintiffs had argued diminished their beachfront property.  On this point, the Court was unanimous.

But Scalia continued, in parts joined only by the conservative bloc, to recognize the concept of a “judicial taking” that the plaintiff-petitioners put to the Court.  In 1994, Scalia had argued for the recognition of the concept that a court’s decision could amount to the government’s taking of property without just compensation in violation of the Fifth and Fourteenth Amendments.  It was no surprise, then, that he’d attempt to codify “judicial takings” in STBR.

Without five members signing onto this part of the decision, the true clash of conservative principles will have to wait another day.  Justice Kennedy, for his part, sided with the liberals who today–in fact, all term–were playing the role of the judicially restrained.  In two separate concurrences – Kennedy w/ Sotomayor and Breyer w/ Ginsburg – four justices agreed that this case presented no necessity to address, or even recognize, “judicial takings.”  Stevens, the owner of beachfront Florida property, recused himself from the case.

But at least now we know that property rights mean more than federalism for the members of the Court who traditionally champion both with full force.  What side the liberals will fall upon in the next Bush v. Gore of property rights is less certain, but if we were to combine their positions in Bush v. Gore itself (deferring to a state supreme court on matters of state law) and Kelo v. New London (robust interpretation of the takings clause), then I’d say that federalism will win their votes.  If Sotomayor and Kagan (if confirmed) will vote like their predecessors in this hypothetical future case, then Kennedy, as ever, will prove the deciding vote.

UPDATE: Scalia calls Breyer a woodchuck, Kennedy, Orwellian:

JUSTICE BREYER’s concurrence says that we need nei- ther (1) to decide whether the judiciary can ever effect a taking, nor (2) to establish the standard for determining whether it has done so. See post, at 1–2 (opinion concur- ring in part and concurring in judgment). The second part of this is surely incompatible with JUSTICE BREYER’s conclusion that the “Florida Supreme Court’s decision in this case did not amount to a ‘judicial taking.’” Post, at 3.  One cannot know whether a takings claim is invalid with- out knowing what standard it has failed to meet.6 Which means that JUSTICE BREYER must either (a) grapple with the artificial question of what would constitute a judicial taking if there were such a thing as a judicial taking (reminiscent of the perplexing question how much wood would a woodchuck chuck if a woodchuck could chuck wood?), or (b) answer in the negative what he considers to be the “unnecessary” constitutional question whether there is such a thing as a judicial taking.

In any case, our opinion does not trust judges with the relatively small power JUSTICE KENNEDY now objects to. It is we who propose setting aside judicial decisions that take private property; it is he who insists that judges cannot be so limited. Un- der his regime, the citizen whose property has been judi- cially redefined to belong to the State would presumably be given the Orwellian explanation: “The court did not take your property. Because it is neither politically ac- countable nor competent to make such a decision, it can- not take property.”

Scalia then goes on to seize back the mantle of judicial restraint from Kennedy the Usurper, Author of Lawrence:

Finally, we cannot avoid comment upon JUSTICE KENNEDY’s donning of the mantle of judicial restraint— his assertion that it is we, and not he, who would empower the courts and encourage their expropriation of private property. He warns that if judges know that their action is covered by the Takings Clause, they will issue “sweep- ing new rule[s] to adjust the rights of property owners,” comfortable in the knowledge that their innovations will be preserved upon payment by the State. Post, at 6. That is quite impossible. As we have said, if we were to hold that the Florida Supreme Court had effected an uncom- pensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court’s judg- ment that the Beach and Shore Preservation Act can be applied to the Members’ property. The power to effect a compensated taking would then reside, where it has al- ways resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compen- sation or acquiesce in the invalidity of the offending fea- tures of the Act. Cf. Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 817–818 (1989). The only realistic incentive that subjection to the Takings Clause might provide to any court would be the incentive to get reversed, which in our experience few judges value.

JUSTICE KENNEDY, however, while dismissive of the Takings Clause, places no other constraints on judicial action. He puts forward some extremely vague applica- tions of Substantive Due Process, and does not even say that they (whatever they are) will for sure apply. (“It is thus natural to read the Due Process Clause as limiting the power of courts to eliminate or change established property rights,” post, at 3; “courts . . . may not have the power to eliminate established property rights by judicial decision,” post, at 4; “the Due Process Clause would likely prevent a State from doing by judicial decree what the Takings Clause forbids it to do by legislative fiat,” post, at 4–5 (internal quotation marks omitted); we must defer applying the Takings Clause until “[i]f and when future cases show that the usual principles, including constitu- tional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners,” post, at 10.)
Moreover, and more importantly, JUSTICE KENNEDY places no constraints whatever upon this Court. Not only does his concurrence only think about applying Substantive Due Process; but because Substantive Due Process is such a wonderfully malleable concept, see, e.g., Lawrence v. Texas, 539 U. S. 558, 562 (2003) (referring to “liberty of the person both in its spatial and in its more transcendent dimensions”), even a firm commitment to apply it would be a firm commitment to nothing in particular. JUSTICE KENNEDY’s desire to substitute Substantive Due Process for the Takings Clause suggests, and the rest of what he writes confirms, that what holds him back from giving the Takings Clause its natural meaning is not the intrusive- ness of applying it to judicial action, but the definiteness of doing so; not a concern to preserve the powers of the States’ political branches, but a concern to preserve this Court’s discretion to say that property may be taken, or may not be taken, as in the Court’s view the circumstances suggest. We must not say that we are bound by the Con- stitution never to sanction judicial elimination of clearly established property rights. Where the power of this Court is concerned, one must never say never. See, e.g., Vieth v. Jubelirer, 541 U. S. 267, 302–305 (2004) (plurality opinion); Sosa v. Alvarez-Machain, 542 U. S. 692, 750–751 (2004) (SCALIA, J., concurring in part and concurring in judgment). The great attraction of Substantive Due Proc- ess as a substitute for more specific constitutional guaran- tees is that it never means never—because it never means anything precise.
How Scalia’s takedown of Substantive Due Process here will play with the decision in McDonald v. City of Chicago, in which he accepted SDP’s legitimacy over the PI Clause at oral argument, is to be determined.  But he does give hints in STBR on why he thwarted Alan Gura’s argument in McDonald: Gura was gunning, through guns, for a libertarian legal resurrection that Scalia wants to keep buried:
[W]e have held for many years (logically or not) that the “liberties” protected by Substantive Due Process do not include economic liber- ties. See, e.g., Lincoln Fed. Labor Union v. Northwestern Iron & Metal Co., 335 U. S. 525, 536 (1949). JUSTICE KENNEDY’s language (“If a judicial decision . . . eliminates an established property right, the judgment could be set aside as a deprivation of property without due process of law,” post, at 3) propels us back to what is referred to (usually deprecatingly) as “the Lochner era.” See Lochner v. New York, 198 U. S 45, 56–58 (1905). That is a step of much greater novelty, and much more unpredictable effect, than merely applying the Takings Clause to judicial action.

Retired Justices as Subs for Recusals

Posted in Kagan Nomination, Law and Politics by Mike Sacks on June 16, 2010

David Ingram of the National Law Journal is reporting that Patrick Leahy may push for retired justices to sit for cases in which other justices recuse themselves.

According to the article, Justice Stevens made this recommendation to Leahy (D-VT), the Chair of the Senate Judiciary Committee.

This seems to me a politically loaded suggestion.  There has already been much talk about Kagan’s potentially high recusal rate over the next few terms as the Court continues to hear cases that her office had briefed in the lower courts.  On divisive issues, Kagan’s absence would lead to 5-3 victories for conservatives or ideological deadlocks at 4-4.

I cannot imagine that the GOP members of the Judiciary Committee will agree to this plan.  If Kagan does not recuse herself on a case in which a conservative may be obligated to do so, two of the substitutes–Souter and Stevens–would be a fifth vote on the left.  It is not inconceivable that these two retired ringers could cut away at the Roberts Court’s business-friendly precedents, as the Court sometimes goes shorthanded on cases concerning corporations in which justices may own stock.

O’Connor, too, exited the Court to the left of Anthony Kennedy on campaign finance, church-and-state, abortion, and affirmative action cases – all issues that have been cut back since Alito succeeded her.  However, recusals on these cases are less likely.  That is, unless some advocacy group somehow finds a not-too-distant relative of Justice Scalia who is an abortion doctor in Nebraska that is willing to be a named plaintiff in a federal case.

Today’s Decisions (and a Blooper)

Posted in Case Reports by Mike Sacks on May 24, 2010

I was at the Court today for its announcement of six brief opinions.  While there, I was lucky enough to see a Breyer Blooper.

Two of the decisions–American Needle v. NFL and Lewis v. City of Chicago–were unanimous.  Per my oral argument report from Lewis, Justice Scalia’s opinion today in favor of the black firefighters’ disparate impact claim against the City of Chicago was hardly surprising.  Still, Justice Scalia’s distaste for disparate impact law was palpable as he read a particularly long summary of a particularly brief opinion.  It was almost as if he was punishing us for his not only having to continue considering disparate impact cases, but also that he found it necessary to rule in favor of the plaintiffs in this case.

A quick recap of the case: the EEOC filed suit on behalf of a class of black firefighters in Chicago claiming that the City’s use of a particular test to determine fire department hirings was discriminatory in its impact.  The district court agreed, awarding backpay and ordering the fire department to hire to 132 class members.  The Seventh Circuit reversed, holding that the firefighters’ suit was time-barred.  Today, the Court held that the black firefighters’ disparate impact claims were not time-barred, thereby sending the case back to the Seventh Circuit to determine whether or not to modify the District Court’s original relief.

As for American Needle, the Court sided with Drew Brees by holding that National Football League Properties’ decision to grant exclusive intellectual property licenses is covered by §1 of the Sherman Antitrust Act, which makes illegal contracts or combinations made in restraint of trade.  The Court, however, did not decide whether NFLP acted illegally; rather, it rejected one standard–”single entity theory”–in favor of another–”Rule of Reason”–for the lower courts to use on remand in determining illegality.

The Court also dismissed as improvidently granted Robertson v. United States ex rel. Watson over a vigorous dissent by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Sotomayor.  The Court left in place a ruling by the court of appeal that a private person may bring an action for criminal contempt rather than in the name of the United States.  The dissenters would have held that the “terrifying force of the criminal justice system may only be brought to bear against an individual by society as a whole, through a prosecution brought on behalf of the government.”  In other words, any action that makes this aspect of criminal law less scary is unconstitutional.  Our Lockean social contract, wrote Roberts, takes “the sword of justice, to be used to smite those who violate the criminal laws, [...] out of private hands and turn it over to an organized government, acting on behalf of all the people.”

Justice Sotomayor, joined by Justice Kennedy, added her own brief dissent to clarify her “understanding that the narrow holding [Roberts's dissent] proposes does not address civil contempt proceedings or consider more generally the legitimacy of existing regimes for the enforcement of restraining orders” similar to the one Watson secured against–and was repeatedly violated by–Robertson.  Regardless of her more modest dissent, Sotomayor may have shown herself to be, as predicted, to the right of Justice Souter in her criminal law jurisprudence.  A few more years and a dozen more opinions are required for that observation to become a conclusion, however.

Justice Stevens was today’s busiest man.  He wrote the unanimous opinion in American Needle, concurrences in United States v. O’Brien and Hardt v. Reliance Standard Life Insurance, and a dissent in United States v. Marcus.

In addition to its decisions in argued cases, the Court GVR’d (granted, vacated, and remanded) Jefferson v. Upton, requiring the lower federal courts to consider whether it erred in accepting a state court’s findings that the attorneys for the petitioner, who is now on death row for murdering a co-worker on a fishing trip, should have investigated the mental effects of having his head run over by a car when he was two years old.  Justice Scalia, joined by Justice Thomas, dissented.

The Court also granted certiorari in six cases to be heard next term.  Two of these cases, Arizona Christian School Tuition Board v. Winn and Garriott v. Winn will be consolidated into a single oral argument testing the constitutionality of a tax credit scheme in which taxpayers choose to direct more contributions to religious organizations than nonreligious ones.

Another case, Skinner v. Switzer, asks whether under a federal civil rights statute a death row prisoner may obtain access to DNA testing that was not performed at trial.  In last term’s District Attorney’s Office for the Third Judicial District v. Osborne, the Court rejected a constitutional right to potentially exonerating DNA evidence when the state has denied access to it, but left open the question of statutory relief at issue in Skinner.

And one more for the blooper reel: Justice Breyer jumped the gavel today, emerging from behind the curtain before the Marshal began her “oyez, oyez, oyez” chant.  Sotomayor came out smiling wide and laughing hard while Roberts amusedly shook his head and Stevens smirked.

Justice Stevens’s Valedictory Question

Posted in Case Reports by Mike Sacks on April 28, 2010

My write-up from this morning’s oral argument in Doe v. Reed is now up at the ABA Journal:

Today marked Justice John Paul Stevens’s final oral argument of his nearly thirty-five year career as an Associate Justice of the United States Supreme Court.  Although Stevens has two more months of opinion announcements to get in a few more words as an active justice, his sole question during this morning’s argument in Doe v. Reed might as well have been his valedictory address to the Court and the country.

For nearly thirty minutes, Justice Stevens listened to the petitioners’ lawyer, Jim Bopp, argue that men and women who signed a petition to place an anti-gay rights referendum on the state ballot had a First Amendment right to privacy in their political associations that protected them against harassment from those with opposing political views.  Accordingly, Bopp maintained, Washington State had no compelling justification to release, pursuant to the state’s Public Records Act, the signers’ name and information.

Then, as the white warning light turned on upon Bopp’s lectern to signal that his half-hour was almost up, Justice Stevens leaned forward and spoke into his microphone.

Read the rest here.

Into the Weeds

Posted in Case Reports by Mike Sacks on April 27, 2010

My oral argument write-up for Monsanto is now up at the ABA Journal:

The Supreme Court today was slated to consider in Monsanto Co. v. Geertson Seed Farms how nigh the organic alfalfa apocalypse must be to justify a federal district court’s nationwide injunction against the use of an agricultural giant’s genetically modified alfalfa seed.

But the Court this morning proved as resistant to the parties’ arguments as Monsanto’s alfalfa is to Roundup weed-killer.  Instead of assessing, as expected, what degree of likelihood of environmental harm must be considered in order for a court to issue an injunction under the National Environmental Protection Act (NEPA), the justices spent the hour snarling at this case as if it were an unwanted weed growing in the Marble Temple.

Read the rest here.

I’m off to the Court now to be not first for tomorrow morning’s argument in Doe v. Reedthe final argument of the Court’s term and Justice Stevens’s career.  Keep your eye on my twitter feed, where I’ll be updating on the line’s progress through the night.

Scalia Legislates from the Bench

Posted in Case Reports by Mike Sacks on February 24, 2010

Today’s opinion in Maryland v. Shatzer holds that

Because Shatzer experienced a break in Miranda custody lasting more than two weeks between the first and second attempts at interrogation, Edwards does not mandate suppression of his 2006 statements.

Seems equitable enough until one notices that Justice Scalia, writing for the Court, actually codified that specific number–14 days–as the bright-line expiry date of Miranda rights.

Isn’t this the very kind of specificity that conservative advocates claim made illegitimate Miranda‘s mandated “you have the right to remain silent” speech and Roe‘s trimester framework?  In other words, shouldn’t Scalia himself have claimed that his 14-day limitation was better left to legislative judgment after extensive findings?  Or are Miranda cases different because the Court created and occupied the field four decades ago?

Justice Thomas caught this inconsistency and called the Court out (citations omitted):

This ipse dixit does not explain why extending the Edwards presumption for 14 days following a break in custody—as opposed to 0, 10, or 100 days—provides the “closest possible fit” with the Self-Incrimination Clause.  Nor does it explain how the benefits of a prophylactic 14-day rule (either on its own terms or compared with other possible rules) “outweigh its costs” (which would include the loss of law enforcement information as well as the exclusion of confessions that are in fact voluntary).
To be sure, the Court’s rule has the benefit of providing a bright line.  But bright-line rules are not necessary to prevent Fifth Amendment violations, as the Court has made clear when refusing to adopt such rules in cases involving other Miranda rights. And an otherwise arbitrary rule is not justifiable merely because it gives clear instruction to law enforcement officers.

A Difficult Case, Indeed

Posted in Case Reports by Mike Sacks on February 23, 2010

This report is cross-posted at the ABA Journal’s website.  Read here, read there, comment and share everywhere!

Early in this morning’s oral argument in Holder v. Humanitarian Law Project, Justice Anthony Kennedy plainly remarked, “this is a difficult case for me.”  The issue was whether a 1996 federal law banning “material support” to designated terrorist organizations infringed on the First Amendment rights of a group seeking to train Turkey’s Kurdistan Workers’ Party (PKK) and Sri Lanka’s now-defeated Tamil Tigers in international law advocacy and peacemaking.

But Kennedy’s pondering the disputed law’s ephemeral distinction between proscribable conduct and protected speech appeared to come to an abrupt halt when Solicitor General Elena Kagan conceded to Justice Kennedy that the law could ban lawyers from submitting amicus briefs on behalf of designated terrorist organizations.  Here was the government telling attorneys who they could and could not represent in a court of law–not a winning argument before a tribunal of, well, attorneys.

The Court’s liberal bloc–Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor–had already displayed their skepticism towards the government’s asserted ability to criminalize speech meant to assist a terrorist organization’s legal activities.  Sotomayor even suggested that “[u]nder the definition of this statute, teaching these members to play the harmonica would be unlawful.”

In response Kagan quipped, “I think the first thing I would say is there are not a whole lot of people going around trying to teach Al-Qaeda how to play harmonicas.”  Justice Antonin Scalia, the lone vocal supporter of the government’s argument, saved the Court further talk of harmonicas by shoving Sotomayor’s hypothetical into an absurd vision of chief 9/11 hijacker “Mohammed Atta and his harmonica quartet” touring the country to “make a lot of money.”

Meanwhile, Justice Clarence Thomas just this week marked his streak of silence’s fourth anniversary, but one could assume he’d ally with Scalia in this case, given his previous willingness to prohibit intensely disfavored expressive activity by casting it as pure conduct.

If Kagan’s amicus-ban assertion seemed to crystallize for Kennedy the infirmity of the law in question, Justice Alito may have fallen off the government’s wagon when Kagan explained that Congress did not intend to criminalize one’s meeting with or joining a designated terrorist organization.  Queried Alito:

Could you explain how someone could be a member of one of these organizations without providing a service to the organization? Simply by lending one’s name as a member; that might be regarded as a service. If you attended a meeting and you helped to arrange the chairs in advance or clean up afterwards, you would be providing a service to the organization.

However, Alito may have asked this question simply to get Kagan to walk back her distinction between simple membership and criminal service-providing so that he could more easily side with the government.  After all, he was the sole supporter of the government’s position in United States v. Stevens, in which the Court is likely to rule a federal ban on depictions of animal cruelty to be an unconstitutionally overbroad restriction on speech.  But walk it back Kagan did not.

Even if Alito still finds a way to join Scalia, even if the loquacious Kennedy forgets that lawyers may be silenced, and even if silent Thomas sides at conference with Sotomayor, Chief Justice Roberts signaled an openness to killing the law as applied to HLP.  That is, as long as the Court got no government blood on its hands.

During HLP counsel David D. Cole‘s rebuttal, Roberts asked, “why don’t we remand it to the lower courts to apply strict scrutiny if we agree with you that” the law does, in fact, prohibit pure speech as opposed to conduct that incidentally touches speech?

Cole quickly endorsed this plan, knowing that strict scrutiny is nearly always “strict in theory, but fatal in fact.”

But just as soon as Chief Justice Roberts offered up a pleasing resolution for this “difficult” case, Justice Sotomayor jumped in to close the morning with the argument that if money is speech–as the Court strongly affirmed in Citizens United–then Congress could have been onto something after all when it found that money is so fungible that “if you give [terrorist groups] money for legitimate means…it’s going to be syphoned off and used for illegitimate means.”  Such a justification for a ban on money-as-speech, Sotomayor suggested, could be “enough under strict scrutiny or under a lesser standard, reasonable fit standard.”

Perhaps Sotomayor believed this, perhaps she was trying to impress upon her conservative colleagues the duty they owed to HLP if they were to remain fully faithful to the First Amendment principles they forcefully articulated in Citizens United.

Either way, Sotomayor’s mixed signals forced the Court to submit HLP the same way it entered: a difficult case, indeed.

Quick thought on HLP

Posted in Case Reports by Mike Sacks on February 23, 2010

The oral argument in Holder v. Humanitarian Law Project did little to clarify where the justices themselves stood on the constitutionality of the Patriot Act’s criminalizing HLP’s (hopes of) providing designated terrorist groups with peacemaking advice and international law advocacy training.

Justice Scalia provided the morning’s biggest laugh by referring to the notion of “Mohammed Atta & His Harmonica Quartet” touring the nation–I’ll give that comment’s context in my argument report.

But the most salient statement today fittingly belonged to Justice Kennedy, when he simply stated, “This is a difficult case for me.”  As goes Kennedy…

Come back or subscribe to F1@1F to get the full write-up later this afternoon.

In Lewis, the Court Stops, Drops, and Rolls over Chicago

Posted in Case Reports by Mike Sacks on February 22, 2010

Here’s my write-up from this morning’s oral argument, also available at the ABA Journal.  Meanwhile, three hours of sleep, a morning full of arguments, and an afternoon full of classes conspired against my vox populi column.  I’ll have it up by the end of the week.  Enjoy!

Inside the Supreme Court this morning, one thing was clear: the City of Chicago got hosed.

A majority of the justices in today’s oral argument in Lewis v. City of Chicago seemed ready to hold in favor of a class of black applicants to the Chicago Fire Department who seek the nullify a qualification test introduced in 1996 that disparately impacted their employment opportunities under Title VII of the Civil Rights Act.  After the test results came out, Chicago announced its intention to hire its firefighters from the applicants it deemed “well qualified,” or those who scored over 89% on the exam.  Problem was, whites comprised the vast majority of the “well qualified” applicants.  The black firefighters the city deemed “qualified,” or scoring between 65%-89% on the exam, filed their EEOC claim when Chicago made its second round of hirings solely from the “well qualified” group.

Because Chicago conceded in subsequent litigation that the test results did disparately impact the plaintiffs, the sole question before the Court today was whether the plaintiff class filed its complaint with the EEOC in a timely fashion. Chicago maintains that the sole discriminatory event took place when the city announced the test results, and that the firefighters failed to file their job discrimination claim within governing Title VII provision’s 300 day limit.  The firefighters, meanwhile, contend that the 300 day limit applied to each of Chicago’s subsequent uses of the exam results.

In a surprising turn, three members of the five-justice conservative majorities in Ledbetter and Riccibetween the facts of which Lewis seems a lovechild–seemed to agree with the firefighters’ statutory interpretation.  Indeed, they spent much of their time this morning making Benna Ruth Solomon, council for the City of Chicago, drink from a firehose.

Justice Alito’s questions suggested that he still felt the burn from the public’s scorn over his authoring Ledbetter in 2007, his first term on the bench.  In Ledbetter, which Congress overturned by passing the Lilly Ledbetter Fair Pay Act of 2009, the Court held that a Goodyear Tires Plant worker was time-barred from suing for sex discrimination under Title VII even though the statute of limitations had run before she could have possibly known that her company had been systematically paying her less than her male colleagues.

This time, however, Alito showed no sign of Ledbetter‘s impractical formalism.  Instead, he rejected Solomon’s contention that the black applicants knew they were rejected when the scores were announced, and therefore missed their shot at a remedy:

Someone getting a letter that you sent to people who were qualified didn’t know that [they were rejected]. The only thing that I see that you sent to the people who fell into the qualified category was that it was unlikely, which I take it means less than 50 percent, that they would be called for further processing, but it was possible they would be called for further processing. You didn’t tell them anything about — you didn’t tell them that you were going to fill all of your available positions with people who were classified as well-qualified in that letter, did you?

While Alito showed that he learned his Ledbetter lesson, Chief Justice Roberts sought to limit Ricci‘s backdraft.  Justice Ginsburg led the charge by asking why Chicago couldn’t have just set the cutoff at 65% rather than 89%, effectively kicking down the door between the exam’s discriminatory classifications.  Then Chief Justice Roberts dumped cold water all over Solomon’s hope that the Court would extend its colorblind Ricci approach to Lewis:

You’ve got to — I mean, you have just got to take your — get as good legal advice as you can, and determine is it — are we going to be in more trouble if we follow the test or more trouble if we — if we take it down?

People have to do that all the time. You know, well, if I do this, I’m going to be in trouble; if I do this, I’m going to — but I have got to decide what I should do.

Roberts implied that had Chicago only thrown out the exam, the city would be in Ricci territory, where white members of the “well qualified” group could have sued and prevailed for “reverse discrimination.”  Of course, Chicago would have lost in that case, too, but at least they’d get to keep the test despite its disparate impact, as New Haven did.  Instead, Chicago continued to use the exam and, in doing so, lost the Chief Justice’s sympathy.

And it was with that term, “use,” that Justice Scalia’s stopped, dropped, and rolled all over Chicago.  Not one to drift into pragmatics as Alito and Roberts had, Scalia lets his textualism trump his antagonism to disparate impact laws:

How do you — the problem I have with all of this — it makes entire sense, except when you read subpart (k) [of Title VII's section 706], it says an unlawful employment practice based on disparate impact is established if a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race.

Solomon did all she could to tell the justices that if they only read the provision in the context of the entire statute, they’ll see the case her way.  But the justices didn’t seem to be buying it.  When John Payton, the firefighters’ counsel and head of NAACP’s Legal Defense Fund, took to the lectern for his rebuttal, he concluded, with the justices’ silent assent, that the firefighters could challenge the discriminatory exam within 300 days of its every use by the City of Chicago.

Air SCOTUS!

Posted in Non-justiciable, ROCK by Mike Sacks on February 19, 2010

The US Air Guitar Championships has officially announced its 2010 tour dates, and begins with some F1@1F bait:

If history has taught us anything, it is this: the spirit of US Air Guitar is indomitable.

If in January Steve Jobs had unveiled Air Guitar, would it have been any less innovative? If one day the Supreme Court unexpectedly judges a case using the following criteria: technical ability, stage presence, and “airness,” would the rest of us be any worse off? If the last episode of X-Files revealed that Air Guitar was the answer, would you not believe?

F1@1F may disagree with that bold question, but Juris Rocktor does not.  Calling Justice Scalia

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