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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Coming Soon to a Demagogue Near You

Today’s 5-4 U.S. Supreme Court decision in the case of Ricci v. DeStefano is going to get cited, distorted and taken out of context massively in the next few weeks, so it’s probably a good idea to make an effort to actually understand it.
As you may know, the case involved a promotion test for firefighers in New Haven, Connecticut in which all the white and one Hispanic) applicants scored better than all the African-Americans. The city tossed out the tests figuring that promotions based on it would fall prey to the “disparate impact” standard for employment discrimination suits under Title VII of the Civil Rights Act. White firefighters sued on both statutory and constitutional grounds, lost at the trial court level on a motion for summary judgment, which was upheld by Judge Sotomayor’s Second Circuit Court of Appeals. The Supremes narrowly reversed this decision on statutory but not constitutional grounds, with the usual conservative coalition of Kennedy, Roberts, Alito, Scalia and Thompson in the majority, with the usual Kennedy opinion.
Here’s how Tom Goldstein of SCOTUSblog characterizes Kennedy’ s treatment of the Second Circuit’s ruling:

I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a non-event. To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the Supreme Court takes a dramatically different view of the legal question. The Court indicates that the state of the law before today’s ruling was “a difficult inquiry,” and that its “holding today clarifies how Title VII applies.” It rejects the plaintiffs’ outright attack on the Second Circuit’s decision as “overly simplistic and too restrictive.”

That figures, since Sotomayor and company were applying limited case precedents in a very plausible way–plausible, indeed to the four Supreme Court dissenters from today’s decision, including the Justice Sotomayor has been appointed to replace, David Souter. So it’s no big deal in terms of Sotomayor’s confirmation, right?
Well, you’d think so, but that’s certainly not how conservative activists are going to play it. Michelle Malkin’s headline tells you exactly how they will play it: “Racism rejected: SCOTUS reverses Sotomayor in firefighters case .”
As it happens, new data from ABC/Washington Post on the Sotomayor nomination came out just yesterday, showing solid majority support for her confirmation. You better believe that the groups already determined to mine the confirmation fight for fun and profit will use a cartoon version of today’s decision to try to turn things around.

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