The Supreme Court Breakfast Table
Dahlia and Linda,
It's going to be hard for me to get a word in edgewise in this gabfest, with its veto-proof two-thirds female majority. (Also, you are both amazingly fast journalists; as a professor, I assumed it took a semester to write anything.) But I'll try, because this conversation has taken a turn to where two really important issues converge.
The substantive issue of symmetry (should all uses of race or all uses of gender be treated alike) intersects with the jurisprudential issue of what goes into good judging (logic alone or experience, social context, practical understanding, a sense of history, etc.). To treat membership in all-male or all-female (or all-white and all-black) organizations as logically indistinguishable is to ignore everything we know about history and context. Having the women in an organization get together among themselves and share their experiences may or may not be a good idea. But it is fundamentally different from having the men—who may have run the institution for the last century—have meetings from which women are excluded.
There is no better example of the false triumph of logic over experience than the 1896 decision in Plessey v. Ferguson, where the Supreme Court upheld Louisiana's law mandating separate railroad cars for white and black passengers in an opinion making the logically correct observation that the law treated the two races exactly alike. It was the court's Southerner, John Harlan of Kentucky, who, in dissent, uttered the two critical words that destroyed that logic: "everyone knows," he wrote, before continuing to describe the true meaning of segregation as oppression of the black race.
The most recent triumph of false logical symmetry was the 2007 decisions in the Louisville and Seattle school-desegregation decisions where the chief justice's plurality opinion equated the efforts of the people in Jefferson County, Ky., and Seattle to have white and black students educated together with the same as the system of racial subjugation and servitude practiced in the American South. As I wrote at the time, at this Breakfast Table, in "Everything Conservatives Should Abhor," the opinion was logically elegant, but it failed the first lesson taught to preschoolers who watch Sesame Street: "Which of these things is not like the others?" Assuming that judging should be like calling balls and strikes leads to the conflation of very different experiences—and to bad law.
The soon-to-be-decided case of Ricci v. DeStephano is the next venue for the symmetry debate. New Haven administered a new multiple-choice test to firefighters seeking promotion. Unlike the results on other tests in prior years, this new test produced a racial disparity in the number of firefighters who became eligible for promotion: Whites became eligible for promotion in roughly twice the proportion that black firefighters did. Asserting a concern that this disparity could not be justified under Title VII, the city's civil service board, on a tie vote, declined to certify the results. White firefighters (including one Latino) sued the city, arguing that the decision not to use the test results was an unlawful employment practice under Title VII and violated the Equal Protection Clause. The court of appeals sustained the city's decision.
Because Judge Sonia Sotomayor was one of the judges on the panel that decided in the city's favor, the case has attracted a great deal of attention. But, as an important letter from professor Richard Primus of Michigan shows, a reversal by the Supreme Court would not cast any negative reflection on Sotomayor, whose vote was entirely in keeping with precedent in her circuit. Her panel may well get reversed, but that reversal would represent a change in the law.
Indeed, at least four justices do appear to contemplate making a fundamental change in Title VII's disparate-impact law, as part of a reconceptualizing of race that would condemn almost every governmental consideration of race. The chief justice suggested at oral argument in Ricci that the right test is whether a government action would be sustained if you reversed the identity of the races involved. The potential ramifications of such an a-historical, a-contextual principle could be staggering. Every justice whom I know of has assumed, for example, that a college could seek to increase its minority enrollment by such race-neutral means as accepting all those who are in the top 10 percent of their high-school classes. But surely a court would not sustain a state university's race-neutral admissions criterion that was adopted for the sole and express purpose of reducing minority enrollment. Even the mildest of actions—such as special recruiting efforts targeted at increasing minority applications—would surely be rejected if they were designed to hold down the number of minorities who applied.
Logic calls for symmetry. Experience—history, context, and common sense—may suggest a different result.
Linda, your thoughts on Ricci?
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.