The U.S. Supreme Court today, in a 5-4 decision, overturned Judge Sonia Sotomayor's 2nd Circuit decision in the New Haven Fire Department "reverse discrimination" case(http://www.supremecourtus.gov/opinions/08pdf/07-1428.pdf). This summer's upcoming nomination hearings just got a little more interesting.
The majority of the Court, in a decision written by the de facto "swing justice," Anthony Kennedy, joined by C.J. Roberts, J. Scalia, J. Thomas, and J. Alito, decided that the New Haven Fire Department's decision to throw out the results of the promotional exam, given the disparte results based on race, violated the white firefighter's rights under "Title VII" (42 U. S. C. §2000, et. seq.)
Careful comparisson of the majority opinion with the minority's dissent highlights a legitimate divide over Title VII's "disparate treatment" vs. "disparate impact" language. (In the most basic terms, Title VII prohibits discrimination based on race not only in a direct sense, but also where the outcome of a given action, whether intentional or not, results in discriminatory effects).
In my opinon, the dissent's opinion is actually a more intellectually honest interpretation of the statute's text. If societal norms on racial discrimination have, indeed, shifted, it's up to Congress and not the Courts to make the appropriate changes to the statutory language. The majority seems to ignore its own precedents, as well as the plain meaning of Title VII's language, in an attempt to impose its own views on affirmative action - something the conservatives on the Court are usually reluctant to do.
This just goes to show that the Courts are not immune from politics, despite claims to the contrary. Whether you agree with the outcome or not (and I make no conclusions either way), the majority's opinion is exactly the sort of "judicial activism" that the conservatives so often rally against. Reverse discrimination case results in reverse judicial activism. Go figure.
Reasonable minds can disagree. As a textualist, I personally believe it's Congress's job and not the Court's to resolve these issues. The simple fact of the matter is, Title VII DOES mandate that consideration be given to disparate impacts. If we as a society no longer believe that to be a legitimate concern, the language of the statute should be amended.
The dirty little secret that this case exposes is that both sides routinely engage in judicial activism - this case merely highlights one instance where the conservatives do it too.
If one were to take a hard-line approach in opposing the nomination of any judge who engages in judicial activism, there wouldn't be a single judge in America who'd be able to pass that test.
In fairness, Judge Sotomayor's previous on-camera statements that the appellate court level *is* where policy is made does not necessarily mean that that's where she believes it *should* be made (though I suspect that she doesn't have a philosophical opposition to the practice).
I will be reserving decision on her nomination until next month's hearings. I'd be lying if I said I didn't have any concerns about her particular brand of judicial activism, however; this specific case will have the interesting effect of putting liberals and conservatives on the opposite sides of the judicial activism debate. Given Title VII's statutory language, as well as the Court's own precedents, today's majority opinion puts the conservatives on the more judicially active side of this debate.
I don't necessarily disagree with the *outcome* of today's decision, I'm merely pointing out the intellectual dishonesty required by the majority to arrive at it. This case, in my opinion, perfectly illustrates the fact that conservative judges are just as prone to "judicial activism" as liberal ones. Like I said, if we as a society believe that affirmative action laws should be changed, that is Congress's job, not the Court's.
What do you think?
- Robert Applebaum's blog
- Login or register to post comments
What does this topic have to do with student loan debt?
Congress won't touch that issue - even with the proverbial ten-foot pole. They will let the Supreme Court legislate by default and claim that there is nothing that they can do. Congress should be a part-time job - just as it was in the days of Adams, Madison, etc. Most of the Washington bureaucracy could be dismantled and a ton of taxpayer money could be saved.
I totally agree that legislation should be changed in Congress, and the courts should not be making their own legal interpretations. This case is a perfect example. It is also an excellent example of how Congress (our elected officials),irregardless of of party,use the backdoor (sneaky) approach to getting what they personally want from a law, through the judges they have chosen during their administrations. I conclude, that not only should Congress stop exculpating their responsibilties to the rights of the people--rather than their self-serving interests - by using the courts, the American Public should demand that Judges be elected by a majority or popular vote "by all the citizens of the united states". No matter how you look at the way the judicial system is being utilized in our country, it reaks of control -- just as the Banks and Lenders are influencing the Congress, the Congress plays the same game, their values are not based upon those of justice, but those of how we can get what we want when we want to and control choice, without "we the people" ever realizing what has happened. The average American does not have the time, or the legal education to understand a great deal of how the system has been changed and utilized. The basic premise that they learn in school, generally speaking, teaches the fundamentals of the three branches of government, executive, judicial and legislative. You need to study and read and spend hours in Graduate classes to understand some of the complexities here.. and I wouldn't advise anyone to take out a student loan to go back to school to do this. My point, the complexities that are enmeshed into the system are purposeful, deceitful, and corrupt because it doesn't allow for -- in Obama's words transparency -- in our democracy. Talking about transparency doesn't cut it -- change requires ACTION -- and as many of you realize, it is very difficult to exert change when the system keeps changing the rules in the middle of the game...as they have done with student loans. How transparent Obama's plans will make things remains to be seen... but for now, it is apparent in this case, it is apparent in the governments ability to ignore our plea to address our facts.. that special interests and greed still prevails. In this regard, Obama, Republicans, Dems... whoever is in the Congress at this time, it is their responsibilty to listen and respond to the will of the people. They are not doing this. Just look at all the various polls and the people's voice is not being heard in many areas. Lets affect change by not giving up on our cohesive abilities as a knowledgeable group of borrowers who were not treated fairly by the system.
Nothing - which is why it's in my blog section and not any of the other sections, all of which are devoted to student loan debt.