Legal Commentary

Ricci et al. Vindicated; Ricci Reversed!

The Supreme Court has reversed the Sotomayor-sitting Second Circuit and ruled in favor of Frank Ricci and his fellow New Haven firemen who would have been promoted but for their race. In doing so it rejected the argument of the Obama administration, and favored by the four dissenting Justices (See Footnote 10 of Justice Ginsburg?s dissent, quoted here), that would have vacated the Second Circuit?s decision and remanded the case to the District Court for fact-finding on the city?s intent in refusing to act on the results of its test.

Much of the early commentary understandably concentrates on the likely impact of the Supreme?s implicitly, and in some instances explicitly, repudiating the work of the Second Circuit panel on which Judge Sotomayor sat. See, for example, here, here, here, here, here, and here.

I have just downloaded the nearly 100 pages of opinions and will no doubt have more to say presently. A very quick perusal, however, suggests that the real loser here should be neither Sotomayor nor the City of New Haven but the entire concept of ?disparate impact? discrimination, at least as it has been practiced. I have made the point that disparate impact has become increasingly incoherent before ? most recently in Eating Its Own Tail, Disparate Impact Itself Has A Disparate Impact ? and I strongly suspect that I?ll be making it again after digesting this decision.

Stay tuned....

Full post as published by Discriminations on June 29, 2009 (boomark / email).