Activism, Discrimination and the Job of a Justice


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“In June, 2009 the U.S. Supreme Court handed down a highly anticipated decision in Ricci v. DeStefano. New Haven, Connecticut, white and Hispanic firefighters brought suit against the city when the results of a promotional exam were thrown out. The city refused to certify the results of the exam when it was determined that black firefighters had performed at levels lower than others.
This case has been discussed at length by media and pundits because it raises hot button issues of fairness, equality and discrimination….”

Author: Julia K. Stronks, professor of Political Science at Whitworth University in Spokane, Washington
Published in: The Daily Press in Ashland, Wisconsin, at the Huntington News Network (home page: http://www.huntingtonnews.net/) in West Virginia, and in The Press-Sentinel in Jesup, Georgia
Date: July 3 and 8, 2009

For the full article:
Activism, Discrimination and the Job of a Justice
(700 words)
by Julia K. Stronks

In June, 2009 the U.S. Supreme Court handed down a highly anticipated decision in Ricci v. DeStefano. New Haven, Connecticut, white and Hispanic firefighters brought suit against the city when the results of a promotional exam were thrown out. The city refused to certify the results of the exam when it was determined that black firefighters had performed at levels lower than others.

This case has been discussed at length by media and pundits because it raises hot button issues of fairness, equality and discrimination.

Sadly, however, the case has rarely been discussed with accurate attention to what it actually said. People have said “oh, the judges got it right” or “oh, the judges got it wrong.” In the case itself, however, the judges said little about discrimination. Ricci v. DeStefano is a case about the construction of a federal statute. It is not about equal protection under the Constitution; it is not about reverse discrimination, and it is not about affirmative action. But, it did involve activism on the part of every justice on the Court.

The federal statute in question is Title VII, an employment statute. Title VII provides that employment decisions may not be made with respect to race or other inappropriate considerations like religion and sex. So, employment decisions must not relate to race in an “overt” way. Saying “all male employees will receive promotions” violates the law. But, employment decisions must also refrain from having a “disparate impact” on protected groups like race and gender. Saying “all employees six feet tall and over will receive promotions” disparately impacts women who tend to be shorter.

However, there are two big exceptions. First, under the federal law, if the employer can show that the employment decision was related to a “business necessity” a decision based on race or gender can be allowed. The issue that leads to litigation in these cases, of course, is the nature of a “business necessity.” What is it? Who decides what it is? What if an employer says there is a business necessity but really there is also discrimination in the company? These are all questions for a jury.

The second exception is the one that Ricci developed. If an employer believes that a race or gender based action is necessary to avoid disparate impact liability (a lawsuit based on race or gender), the employer may make a race- or gender-based decision. In Ricci the Supreme Court justices chose to answer a very narrow question: what standard should we use to evaluate the employer’s belief that he or she is trying to avoid disparate impact liability? The five justices in the majority said the employer must have a “strong basis in evidence” that disparate impact liability will be assessed. The four justices in the minority said the employer must have only “good cause” to believe disparate impact liability will be assessed.

Ricci v. DeStefano is not, by itself, an important case. But, it points to something we must be aware of as we watch Supreme Court nomination hearings. There is much discussion about the need for Supreme Court justices to refrain from “activism.” Activist judges, it is said, read too much into the text of the Constitution or statute.

Ricci, however, is a case that demonstrates the process judges have to go through when faced with a statute that is not clear on its face. Both the minority and the majority justices analyzed what should be done when an employer believes that a race-based action is necessary to avoid disparate impact liability. The problem is that this entire exception is not in the statute itself. It was developed in Supreme Court jurisprudence. In addition, the entire discussion about “strong basis in evidence” versus “good cause” belief is also based in jurisprudence rather than in the text of the statute. All judges have to interpret the meaning of laws. It is rare that a law is completely clear—every Justice on the Court engaged in some form of activism when handing down Ricci v DeStefano. So, “activism” on the part of judges is often a false criticism. We must be very careful when listening to pundits assess judges using a term like this.
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Julia Stronks (jstronks@whitworth.edu) has a law degree, a Ph.D., and is a professor of Political Science at Whitworth University in Spokane, Washington. She has written numerous books on faith, citizenship and law.