SCOTUS And The Ricci Case

D-day reviews the Supreme Court's 5-4 decision overturning the New Haven firefighters' reverse discrimination case, vacating the decision of nominee Sonia Sotomayor.

What's notable is that this case was previously decided by the 2nd Circuit Court of Appeals by a three-judge panel that included Sonia Sotomayor. And so now we'll hear all about that honky-hating judge reversed again (how does this affect her "reversal rate"?) and the manly men of the Supreme Court helping out those poor white firefighters who worked so hard to pass that test.

Except that Courts of Appeals, who generally follow prior precedent in cases like this, cannot make the sweeping changes that can be made at the SCOTUS level. Far from being a slave to "empathy," Sotomayor followed the law available to her in concurring with the majority decision on her Court. In fact, as Sam Alito wrote in his concurrence today, "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." The Second Court had no precedent on which to rely to offer that enforcement, and if Sotomayor reversed the District Court ruling in Ricci, she would have been relying on sympathy. Which is what her critics say she always relies on.

What is also often overlooked is that Sotomayor's decision in the Ricci case was part of a unanimous three-judge decision to do so. There was no existing precedent here, so kicking this up to the Supreme Court in order for them to craft one was the right thing for Sotomayor to do. One was then crafted and handed down today, in a close 5-4 decision. If Sotomayor had sided with the firefighters at the appellate level, it would have literally been a case of being an "activist judge" which conservatives hate so much.

But again, being an activist judge (the only honest definition is "a judge that crafts a legal precedent through a decision") is apparently exactly what conservatives want, for they are applauding this decision and the legal precedent it now creates. Activist judges are fine as long as they make precedent that conservatives agree with.