Ginsberg's Dissent

A few observations regarding the dissent in Ricci.

Ginsberg argues that while the petitioners "attract" "sympathy", "they had no vested right to promotion." It takes a particularly empty flavor of sympathy to miss that what was at stake here was more than simply a "right to promotion". This is, whatever else, a case of breached trust. Their employer, the city government, initially, established a process by which promotions would be allocated. They sacrificed to succeed within that process only to have the rug pulled out from underneath. On a very broad -- and admittedly non-legalistic -- level, we have a right to trust, if not our employer, then our Government.

On a more legalistic level: In 1964, Congress passed the Civil Rights Act, Title VII of which prohibits intentional discrimination in employment ("disparate treatment"). In 1971, the Supreme Court discovered an additional prohibition basically against policies which cannot be justified by business necessity that, in-practice, produce discriminatary outcomes ("disparate impact"). Tangentially, its worth noting the bright line between this sort of actual "legislating from the bench" that was then popular, and the sort nowadays attributed to conservative justices. In 1991, Congress blessed this discovery by enacting a Civil Rights act explicitly codifying disparate impact.

Conservatives on the court, perhaps with this history in mind, see a tension between the two prohibitions. To them, the former, generally speaking, mandates race-neutral decision making where as the latter, in practice, can encourage race-conscious decision making.

The liberal dissenters argue that this law -- as laws in general -- should be interpreted as a cohesive whole. Understood as such, the manifest intent is to remedy historical discrimination. One should not, in keeping this spirit of the law, actively acting to remedy historical discrimination, be overly taxed with concern for reverse discrimination.

In other words, to the Court, disparate treatment should be evaluated in a race-neutral manner. A city surely cannot throw out tests for promoting too many blacks, ergo it can't throw out test for promoting too many whites. To the dissenters, "context matters" (which is to say "race matters"), and there is expanded wiggle room for reverse-discrimination if it is in the service of remedying historical discrimination.

The above said, the dissenters appear to go on to apparently agree with the rest of the Court that not only outright, but even de-facto, quotas are a no-no. The dissent appears to agree with the Court that the test results could not have lawfully been discarded entirely on the basis of disparate impact, that some legitimate basis for questioning the exam itself is required. In the end, they merely quibble with the Court's "Strong Basis in Evidence" standard as unnecessarily high.

The alternative standard they propose is, to my mind, low to the point of meaningless. In reality, if it governed, no exam producing statistical disparity would likely be protected.

What is most interesting to me in this is the contrast with the district court decision approved by Sotomayor. The dissent, in theory, prohibited de-facto quotas even if, in practice, it would support their establishment. The district court, as summarized in the dissent, and by implication the likely future Justice, were not troubled at all by de-facto quotas.