Led by Justice Kennedy, the Supreme Court struck down the 2nd Circuit’s decision in Ricci v. Destefano (pdf) this morning. He was joined by Justices Alito, Scalia, Thomas, and Roberts. The decision shows a conservative-leaning court interpreting Title VII in its original spirit, which was to be completely colorblind:
Without some other justification, this express, race-based decisionmaking violates Title VII’s command that employers
cannot take adverse employment actions because of an individual’s race. (p. 19)
It’s worth noting that the balance of Justices in this case is exactly the same as it was in Heller. When the question of incorporating the 2nd Amendment under the aegis of the 14th comes before the Court next year, we should be able to expect a 5-4 margin.
Our current situation is strikingly similar to the one existing between 1930 and 1937 in the Hughes Court. Much of Roosevelt’s early New Deal legislation was stalled by a bloc of conservative Justices comprised of McReynolds, Devanter, Sutherland and Butler. Referred to as the Four Horsemen, they were frequently joined in their verdicts by Chief Justice Hughes.
Back then, the Court was the only branch of government keeping FDR’s agenda in check, and his exasperation with their resistance (and influence) led him to propose a politically disastrous measure to force a change in the balance of the Court. Soon after, Devanter retired and was replaced by Hugo Black, and the Court became more sympathetic to the New Deal. Still, a point had proven: the Supreme Court is the true Third Branch, and is on equal footing with the other two (*).
So now we’ve got our Four Horsemen in Scalia, Alito, Thomas and Chief Justice Roberts, with Kennedy often concurring. In this administration, we’re going to need them.
What’s more, Stevens may be also be leaning to the right. Last year, he joined a 7-2 majority to uphold Kentucky’s lethal injection procedures in Baze v. Rees, leaving only Ginsburg and Souter to dissent. In Crawford v. Marion County Election Board, he went with a 6-3 majority in upholding Indiana’s Voter ID law. Though he sided with the dissent in Heller, he may see the issue of the 14th Amendment differently.
Fortunately, Sotomayor is no Hugo Black. It seems a foregone conclusion that she will be confirmed as Souter’s replacement, but she’ll be replacing a staunch liberal as it is. The balance will not change, and she may be even less influential than Souter was.
I’ve lost count at this point, but today’s decision marks at least the fifth case of hers that has been reversed by the Supreme Court. Previous reversals included Riverkeeper, Inc. vs. EPA (2007), Dabit vs. Merrill Lynch (2005), Malesko v. Correctional Services Corp. (2000), and Tasini vs. New York Times (1997).
She’s made some interesting decisions over the last few years, but she’s a moving target in terms of ideology. I’m not happy with her statements about race or “empathy,” and I detest the very idea that the Courts are “where policy is made.” Still, I find some of her positions laudable. In United States v. Julio Gori (2nd Circuit, 2000), she wisely (and passionately) breaks with the majority in a dissent that loudly laments the extension of Terry stops into the home of a suspect.
On the issue of civil liberties, she appears to side with the individual a large portion of the time, while she appears to support the Federal government on economic issues.
In any case, she’s the least dangerous of Obama’s potential appointees, and the balance still leans to the right for the foreseeable future.
(*) I’m currently reading FDR v. Constitution by Burt Solomon, which is an excellent history of the Supreme Court during the first half of the Roosevelt administration. Solomon has a slight bias, but still presents the facts in a cogent and fair manner, and it’s a good read.