Academic

Adamson on Ricci v. DeStefano

By Lawrence Solum

Bryan L. Adamson (Seattle University School of Law) has posted Ricci v. DeStefano: Procedural Activism(?) (National Black Law Journal (University of California, Los Angeles), Vol. 24, 2011) on SSRN. Here is the abstract:

This Essay analyzes the Supreme Court?s Ricci v. DeStefano decision. The majority Justices ? Roberts, Alito, Scalia, Thomas and Kennedy ? imposed a legal burden upon the City of New Haven which had never before been applied in Title VII cases, nor argued in the lower tribunals of the immediate case. Despite those circumstances, and the fact that the matter was before the Court on cross-motions for summary judgment, the majority refused to remand to the case to the trial court under that heightened standard, and held that the City violated Title VII of the Civil Rights Act because it could not demonstrate its Civil Service Board had a ?strong basis in evidence? to reject the firefighter examination results. In doing so, the majority justices, reputedly more aligned with the Bickelian philosophy of exhibiting passive virtues, threw judicial minimalism out the window.

This Essay also examines Justice Alito?s concurrence and contends that it too betrays tenets of judicial minimalism. In his zeal to construct a narrative that the White firefighters were victims of unbridled African-American political power, Justice Alito builds his opinion upon foundations of hearsay, hearsay upon hearsay, opinion, and unverified statements ? evidence that could neither properly be considered under summary judgment rules nor, in their established form, have reached a jury. This Essay concludes that the majority and concurring justices engaged in procedural activism by sidestepping remand doctrine and evidentiary rules, and ignored the import of affirmative candor as it regards principles of procedure.

Full post as published by Legal Theory Blog on January 29, 2011 (boomark / email).