The Ricci Case

The Ricci case was handed down today ... it's been pegged as a "reverse-discrimination" case and the politics surrounding Sotomayor's SCOTUS pick makes it impossible to have a real discussion about the intricacies of employment discrimination law. But, lets just say that it's settled (and intentional) that disparate outcomes, such as the firefighter's test, may be used as part of a prima facie case of discrimination. The Trial court believed such evidence was sufficient, a 3 judge panel of the 2nd Circuit agreed (and Sotomayor signed on) and refused to hear it en banc. Then - SCOTUS narrowed/changed/clarified the law so that bare evidence of disparate impact isn't enough, by itself, to infer discrimination. This is what courts do ... and it concerns a grey area of law where judges can disagree (and politics necessarily must color their interpretation). It was a close call of law (Kennedy said it was "unsettled") and the conservatives saw it the way conservatives want to see it, and the liberals saw it their way.

Publius has a good post on the case - especially noting how odd (he calls it "political") it was that SCOTUS didn't announce the rule and then remand (which I guess would have garnered a 9-0 vote!) but instead announced the rule and then applied it as a trial court would (and SCOTUS is not supposed to). Glenn Greenwald does too. As do the guys at SCOTUSblog.

UPDATE: Ramesh Ponnaru (a National Review guy) has a great NYT op-ed about the hypocrisy of the right -- judicial activism is alright if it suits their agenda.

UPDATE 2: TNR's blogger has the "counter-point." Although he admits all I've said - that it was well settled that Disparate Impact could be used as presumptive evidence of discrimination until SCOTUS handed down the decision yesterday adding an additional step. There's many arguments before and against DI law - but lets just admit that the court clarified/created new law - and the Sotomayor thing is going to overshadow any real (interesting) discussion of DI law.