The Supreme Court Breakfast Table

Are Sotomayor's Critics Stuck?
An email conversation about the news of the day.
June 29 2009 2:39 PM

The Supreme Court Breakfast Table

VIEW ALL ENTRIES

Walter, you are so obviously correct that this decision renders completely implausible any criticism of the 2nd Circuit panel—yet folks out there are sure trying. The majority not only says the 2nd Circuit was wrong, it also says that the Equal Employment Opportunity Commission and the several other federal agencies that have long used the "four-fifths rule" to determine when a job test had a burden-shifting disparate impact were wrong. Under that rule, a test that members of one racial group passed at less than 80 percent the rate of members of another racial group was prima facie discriminatory (the initial showing the plaintiff has to make). The burden in any resulting litigation would then shift to the employer to justify the outcome—i.e., to show that the requirement or test was job-related. As I read the majority opinion, numbers are no longer enough to indicate that an employer has anything to worry about, in the absence of "a strong basis in evidence" that something besides results in a miss. This is a substantial weakening of the disparate-impact prong of Title VII. As you suggest, Walter, the 2nd Circuit (and the 6th Circuit, which had handled a similar case in a nearly identical way) was playing by the old rules, and the Supreme Court changed those rules. Don't we want our appellate judges to play by the rules they are given and to refrain from the activism that would be involved in crafting new ones?  Does it seem to you, as it does to me, that Judge Sotomayor's critics are now kind of stuck?

Yours,
Linda

Linda Greenhouse covered the Supreme Court for the New York Times for 30 years. Since January 2009, she has been the Knight Distinguished Journalist in Residence and Joseph Goldstein Senior Fellow in Law at Yale Law School.

TODAY IN SLATE

Foreigners

More Than Scottish Pride

Scotland’s referendum isn’t about nationalism. It’s about a system that failed, and a new generation looking to take a chance on itself. 

IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.

Why Greenland’s “Dark Snow” Should Worry You

Three Talented Actresses in Three Terrible New Shows

The Human Need to Find Connections in Everything

It’s the source of creativity and delusions. It can harm us more than it helps us.

Jurisprudence

Happy Constitution Day!

Too bad it’s almost certainly unconstitutional.

The Ungodly Horror of Having a Bug Crawl Into Your Ear and Scratch Away at Your Eardrum

My Father Was James Brown. I Watched Him Beat My Mother. Then I Married Someone Like Him.

  News & Politics
Weigel
Sept. 17 2014 2:57 PM ISIS Helps Snuff Out Conservative Opposition to Government Funding Bill
  Business
Business Insider
Sept. 17 2014 1:36 PM Nate Silver Versus Princeton Professor: Who Has the Right Models?
  Life
Outward
Sept. 17 2014 1:59 PM Ask a Homo: Secret Ally Codes 
  Double X
The XX Factor
Sept. 17 2014 1:26 PM Hey CBS, Rihanna Is Exactly Who I Want to See on My TV Before NFL Games
  Slate Plus
Slate Fare
Sept. 17 2014 9:37 AM Is Slate Too Liberal?  A members-only open thread.
  Arts
Brow Beat
Sept. 17 2014 1:01 PM A Rare, Very Unusual Interview With Michael Jackson, Animated
  Technology
Future Tense
Sept. 17 2014 12:35 PM IOS 8 Comes Out Today. Do Not Put It on Your iPhone 4S.
  Health & Science
Bad Astronomy
Sept. 17 2014 11:18 AM A Bridge Across the Sky
  Sports
Sports Nut
Sept. 15 2014 9:05 PM Giving Up on Goodell How the NFL lost the trust of its most loyal reporters.