Monday, June 29, 2009

Activist Judges Of The Conservative Sort

We asked the question a while back whether the conservative judges, who have the majority on federal courts for the first time since 1937, would be what they claim to eschew, namely being activists. Today at the U.S. Supreme Court in Ricci v DeStefano, 557 US ___(2009), Case #07-1748, a case from the U.S. Court of Appeals, Second Circuit, in which Supreme Court nominee Sotomayor took part, the conservative Supremes got active.

They created some new law which did not previously exist, which was not enacted by congress, and which did not exist at the time Sotomayor and two other Judges of the Second Court of Appeals made their decision.

The Supremes did not reach any constitutional issue, nor had the Second Circuit in its decision earlier, based on the doctrine of avoiding constitutional decisions when statutory claims can be used to fashion a remedy instead, holding:
Thus, the Court adopts the strong-basis-in evidence standard as a matter of statutory construction in order to resolve any conflict between Title VII’s disparate-treatment and disparate-impact provisions.
(ibid, Section II(B) near end). That "strong-basis-in evidence standard" means that cities like New Haven, and other such defendants in these type cases, would have to show they would loose a case if sued, not simply that they could or would be sued.

Did the majority of the court think about what happens when you ask your lawyer if you are going to win a case or not?

"Nothing is guaranteed" is likely to be the answer, so one wonders how the city is going to be sure they will loose a case before they take certain actions to correct what would bring on that loss?

Anyway, the next time the Second Circuit, or any other Circuit Court of Appeals, deals with the issue they will have some new law to help them decide; which is something Sotomayor and the other two Second Circuit Judges did not have when they ruled in this case..

Take notice conservatives, judicial activism is not limited to "those activist liberals" you condemn all the time for being "activist judges", because sometimes even you conservatives in the majority have to make new law.

Conservatives in congress don't call it that of course, they call conservative decisions like this "strict constructionism".

Several journalists in the news media (e.g. Chuck Todd, White House Correspondent for MSNBC) have picked up on the activism in this decision, however, I have yet to notice anyone in the MSM picking up on the heart of the dissent.

Therefore here is a quote from the Ginsburg dissent, which was joined by 3 of the other Justices:
The Court’s recitation of the facts leaves out important parts of the story. Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. In extending Title VII to state and local government employers in 1972, Congress took note of a U. S. Commission on Civil Rights (USCCR) report finding racial discrimination in municipal employment even “more pervasive than in the private sector.” H. R. Rep. No. 92–238, p. 17 (1971). According to the report, overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles. In making hiring and promotion decisions, public employers often “rel[ied] on criteria unrelated to job performance,” including nepotism or political patronage. 118 Cong. Rec. 1817 (1972). Such flawed selection methods served to entrench preexisting racial hierarchies. The USCCR report singled out police and fire departments for having “[b]arriers to equal employment … greater … than in any other area of State or local government,” with African-Americans “hold[ing] almost no positions in the officer ranks.” Ibid. See also National Commission on Fire Prevention and Control, America Burning 5 (1973) (“Racial minorities are under-represented in the fire departments in nearly every community in which they live.”).

The city of New Haven (City) was no exception. In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 percent of the City’s 502 firefighters. The racial disparity in the officer ranks was even more pronounced: “[O]f the 107 officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).
(Ginsburg Dissent, emphasis added). Some people remember that the blacks did not make slaves of the whites or have power to discriminate against them as a matter of law for a hundred or so years.

Most historians realize that whites enslaved blacks. So the point of the statute was to push back against whites, not against blacks, since it was blacks that were horribly enslaved for generations.

None of us want whites, blacks, reds, yellows, or any other race to be discriminated against in the abstract. But we have not been able to get what we want in our history.

Instead we have had the most horrendous and long lasting slavery and racial discrimination imaginable (in the land of the free and the home of the brave).

Lets not forget that context as the Supreme Conservatives seem to have done.

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