The Supreme Court Breakfast Table

Taking Ricci Off the Table
An email conversation about the news of the day.
June 29 2009 12:29 PM

The Supreme Court Breakfast Table

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Linda, Dahlia, and Emily:

One quick note on Ricci: The advanced political commentary has been focused on what the decision will mean for the confirmation of Judge Sonia Sotomayor, who was a member of the court of appeals panel whose decision was reversed today. As one Republican senator put it on Sunday, will the Supreme Court decide the case in a way that shows her to be "outside the mainstream"? We now have the answer to that question, and the answer is no.

Four Justices—Ginsburg, Stevens, Breyer, and Souter (whom Sotomayor would replace) —voted to affirm the decision she joined. I am confident (and hope to demonstrate in a later posting) that Justice Sandra Day O'Connor would surely have joined with those four had she still been on the court. In other words, the position Sotomayor took would have been affirmed, had the court not shifted to the right when George W. Bush named Samuel Alito to replace O'Connor. And even if I'm wrong about that, being with the four and not the five is fully within the mainstream, however that's defined.

Moreover, reading the opinions makes clear that the court's five-justice majority is adopting a new standard. Justice Kennedy's opinion for the court says, "For the foregoing reasons, we adopt the strong-basis-in-evidence-standard … to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." Both the majority and dissenting opinions seem to agree that this represents the adoption of a new standard. (Justice Ginsburg, speaking in dissent from the bench, called it "novel.") As a court of appeals judge, Sotomayor was obligated to apply the law at the time of her decision. She did so.

This decision should effectively take the Ricci issue off the table as an issue for her confirmation process. I'll have a lot to say about the decision later this afternoon, as I'm sure you all will.

Regards,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.