Friday, July 10, 2009

Ricci - Alito, the Reverend, and Sotomayor

Fear not, I have not forgotten about the two remaining opinions in Ricci v. DeStefano (the white New Haven firefighters case). Tonight, I address Justice Alito's concurring opinion. Previous entries addressed:
Which leaves Justice Ginsburg's dissent for another day. Justice Alito's opinion is fascinating in that it reads almost like a newspaper article. There is barely any discussion of the law which, needless to say, is extremely unusual in a judicial opinion.

The Facts
At the risk of oversimplifying, Alito's fact-based opinion attempts to show that regardless of the test you use, the City just plain didn't really think it was going to be liable under a disparate impact theory (their proffered defense for discriminating against the white firefighters who passed the test):
"Almost as soon as the City disclosed the racial makeup of the list of firefighters who scored the highest on the exam, the City administration was lobbied by an influential community leader to scrap the test results, and the City administration decided on that course of action before making any real assessment of the possibility of a disparate-impact violation."
Alito takes particular aim at the "influential community leader," Reverend Boise Kimber.

The Reverend
Alito notes that Rev. Kimber is a "self-professed 'kingmaker'" who "threatened a race riot" during an earlier murder trial of an African-American. Rev. Kimber had a decade of ties to the mayor of New Haven, including a stint as Chairman of the City's Board of Fire Commissioners "despite the fact that he had no experience in the profession." And for good measure, Alito reminds us that "Rev. Kimber told firefighters that certain new recruits would not be hired because ‘they just have too many vowels in their name[s].’"

Maybe Justice Alito went through this exercise because it really undercuts the City's argument that it had either "good cause" (advocated by the dissent) or a "strong basis in evidence" (the majority test) to believe it would be held liable under a disparate impact claim if it certified the test results. Maybe Alito really wanted to highlight the actions of Rev. Kimber. In fact, I suspect both. I think there's also some evidence, however, that Alito was offering a subtle critique of Supreme Court nominee Sonia Sotomayor who was part of the Second Circuit panel that heard the case before it came to the Supreme Court.

The last sentence before Alito launches into his account of the facts reads:
"[T]he decision below, which sustained the entry of summary judgment for respondents, cannot be affirmed unless no reasonable jury could find that the City’s asserted reason for scrapping its test... was a pretext and that the City’s real reason was illegitimate..."
In short, Alito's detailed discussion of the facts is really meant to show that the "decision below" was wrong... whether you use the Supreme Court majority's test or Justice Ginsburg's dissent's test.

The other portion of Alito's opinion that arguably addresses Sotomayor is the conclusion. First, recall that Obama selected Sotomayor following his announcement of the controversial "empathy" standard. Then read the very last words of Alito's opinion:
"The dissent grants that petitioners’ situation... 'understandably attract[s] this Court’s sympathy.' But 'sympathy' is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law.... And that is what, until today’s decision, has been denied them."
OK, I get that "sympathy" and "empathy" are different words... but given the controversy surrounding "empathy" it seems believable that Alito was trying to weigh in without being too obvious. Or maybe I'm searching for hidden messages that aren't really there. That's for you to decide.