The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the [...]]]> While the Court’s decision in Ricci v. DeStefano focused mostly on disparate impact law, much of the subsequent discussion has focused on the threshold finding that the City of New Haven’s decision not to use the test scores to promote firefighters was, as a matter of law, disparate treatment discrimination against some white firefighters who would be promoted if the test scores were used. Recent events suggest that the issues raised in those discussion may have to be decided since African-American testtakers have now challenged the use of the test scores as both disparate treatment and disparate impact discrimination.

The Court described the factual basis for finding that the City’s decision not to use the test scores was disparate treatment discrimination against those testtakers — the 17 whites and two Hispanic who would have been promoted if the test scores were used:

“When the examination results showed that white candidates had outperformed minority candidates, the mayor and other local politicians opened a public debate that turned rancorous. Some firefighters argued the tests should be discarded because the results showed the tests to be discriminatory. They threatened a discrimination lawsuit if the City made promotions based on the tests. Other firefighters said the exams were neutral and fair. And they, in turn, threatened a discrimination lawsuit if the City, relying on the statistical racial disparity, ignored the test results and denied promotions to the candidates who had performed well. In the end the City took the side of those who protested the test results. It threw out the examinations.”

The Court later describes why those facts support, as a matter of law, a finding of disparate treatment discrimination:

“The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense. All the evidence demonstrates that the City chose not to certify the examination results because of the statistical disparity based on race—i.e., how minority candidates had performed when compared to white candidates. . . . Whatever the City’s ultimate aim—however well intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white.”

In sum, because the City knew the distribution by race of the test scores and knew that if the scores were used to promote firefighters to lieutenant and captain positions, no African American testtakers and all but two Hispanic testtakers would not get promoted to fill the openings that then existed.  (Over the two year lifetime of the test, three African Americans might be considered for promotion to lieutenant if there were new openings.) While the Court appeared to focus on two racial groups of testtakers – whites and African-Americans — in fact there were six different groups based on three racial groups members which were represented in two groups — those affected favorably by the decision not to use the test scores and those affected unfavorably.

 These are the six different groups:

 1. The  24 African American who, because the City decided not to use the test scores,  now have an improved chance for promotion if some other method is used to make the promotions. The City claims their threat of a disparate impact lawsuit was why it decided not to use the test scores.

2. The three African-American testtakers who might be considered for promotion to lieutenant if there were more openings over the two year life span of the test results. If it was decided not to use the test scores, their chance for promotion probably decline but that would not be known until it was known what the alternative promotion procedures the City might adopt would mean for them.

 3. The 20 Hispanic testtakers who, like the 24 African-American testtakers in group 1, would not have been promoted under the tests.

 4. The 51 white testtakers who did not score high enough to be promoted if the test scores would be used. Like the African-American and Hispanic testtakers in groups 1 and 3, their chances for promotion were improved by the City’s decision not to use the test scores because they had no chance for promotion if the test scores were used.

 5. The 17 white testtakers who did score high enough to be promoted if the test scores were used. With the decision not to use the test scores, their chances for promotion declined. They lost a sure thing and only have some chance for promotion under whatever system the City would decide to use for promotions instead of the test scores.

 6. The two Hispanic testtakers who scored high enough to be promoted if the test scores were used. Like the members of group 5, they have a reduced chance of promotion because they lost a sure thing.    

 In sum, there are six distinct groups involving three different racial groups and two possible outcomes. Each racial group had members in the group that would be treated more favorably if the test scores were used and had members in the group who likely would be treated more favorably if the scores were not used and some alternative selection method was adopted. In other words, the results as to all the testtakers resembles a racial mosaic, with the decisions not made along strict racial lines. This table shows the results as to all six groups: 

                                               Racial Groups

 Based on this, how could the Court conclude, as a matter of law, that the “City rejected the test results solely because the higher scoring candidates were white”? Was it also disparate treatment discrimination against the two Hispanic testtakers who would be promoted if the test scores were used and the three African-American testtakers who had some chance for promotion during the life span of the test results? None of these questions were addressed in Ricci. Why was this solely discrimination against the 17 white testtakers and not anyone else or everyone else?

 The basis for the Court’s conclusion appears to be simply that the City acted with knowledge of the racial impact of using or not using the test scores on all three races, not just the impact on the 17 white testtakers who were the first group to sue. The Court assumed there was no animus against any of the racial groups because there was disparate treatment racial discrimination “[e]ven if respondents were motivated as a subjective matter by a desire to avoid committing disparate-impact discrimination.”

 So, even if the City had subjectively intended to benefit members of the first three groups that included whites, Hispanics and African Americans, its decision not to use the test scores amounts to an intent to discriminate against only one group, the whites who would benefit if the test scores were used. If the City’s decision was disparate treatment discrimination against the white plaintiffs, what is the explanation for it also not being disparate treatment against those members of these two minority groups who were similarly situated to those white plaintiffs? Since those Hispanics and African Americans did not sue, is it simply out of sight, out of mind? 

Deciding to benefit, or not to disadvantage, most of the testtakers be they African-American, Hispanic or white inevitably, for the Court, supports drawing the inference, as a matter of law, that the City acted with an objective intent to discriminate solely against the comparatively small group of whites who were disadvantaged by that decision. Apparently, what got the City in trouble with the Supreme Court was that the City acted, knowing the racial consequences of its decision not to use the test. Of course, the City also had to know that its decision would also disadvantage some Hispanic and African-American testtakers as well as the white plaintiffs and that it would also be to the advantage of members of all three racial groups who would get a new chance to be promoted under whatever alternative promotion system the City might adopt.

Can support for this objective intent rule be found in the Title VII systemic disparate treatment cases where plaintiff establishes liability by proving the existence of an explicit, written employment policy that expressly discriminates? For example, in Los Angeles Department of Water & Power v. Manhart, plaintiffs proved that the defendant had an employment policy requiring all women to contribute more for their pensions than all men. That policy was drawn with all women on one side of the classification and all men on the other. That is not the situation in Ricci since members of all three groups fall on both sides of the line and there is no express policy to discriminate.  In International Union, UAW v. Johnson Controls, the Court found that an express employment policy excluding all fertile women but no fertile men from jobs making batteries was systemic disparate treatment even though non-fertile women and all men were not disqualified. This is not Ricci since not all members of one racial group were on one side of the line as the men were in Johnson Controls and, again, there was no express policy drawing any racial division. Those cases give little support to the idea that disparate treatment liability can be found without an express classification and with impact that leaves members of all racial groups on both sides of the line.

It is also not clear that the systemic disparate treatment cases based on statistical evidence proving the employer had an intentionally discriminatory employment practice support the holding in Ricci. In Teamsters and Hazelwood School District, the statistics established intent, even in the absence of proof that no African Americans were, respectively, over-the-road truckers or school teachers. In the situation of an “inexorable zero” of African-American truckers in Teamsters and the statistically significant absence of African-American teachers in Hazelwood is quite different from the statistics in this case where disparate treatment was found even though the white plaintiffs were only 25% of all the whites who took the test. Looking at the statistics alone, it would seems to be unlikely to support drawing an inference of intentional race discrimination against the members of any of the six groups without drawing the same inference as to the members of each of the six groups. That would not be disparate treatment discrimination.

There is support in the cases for the proposition that simply being conscious of the race or gender of the affected individuals does not support drawing an inference of intent to discriminate sufficient to support a claim of disparate treatment discrimination. Justice O’Connor, in her concurring opinion in Price Waterhouse v. Hopkins, made it clear that intent to discriminate cannot be found solely on the fact that the race or gender of the person affected by the decision is known to the decisionmaker:

“Race and gender always ‘play a role’ in . . . a benign sense that these are human characteristics of which decisionmakers are aware and may comment on in a perfectly neutral fashion. For example, . . mere reference to ‘a lady candidate’ might show that gender ‘played a role’ in the decision, but by no means could support a rational factfinder’s inference that the decision was made ‘because of’ sex.”

Similarly, in the context of equal protection law, the Court, in Personnel Administrator of Massachusetts v. Feeney, found that an absolute preference for hiring military veterans at a time when men were 98% of the veterans was not intentional discrimination against all women other than the 2% of veterans who were women even though the vast majority of women would be disqualified if even one veteran applied for the job:

“’Discriminatory purpose,’ however, implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”

The concurring opinion of Justice Alito in Ricci argues that the motive for the City deciding not to use the test was the mayor’s fear of the consequences of local, racialized politics aimed at him: “[W]ere the exams certified, the Mayor would incur the wrath of [Rev. Boise] Kimber and other influential leaders of New Haven’s African-American community.” Assuming that avoiding the wrath of some members of the community was what drove the decision not to use the test, the City’s announced reason for not using the tests of trying to avoid disparate impact liability seems like a pretext. But, a pretext for what? It is hard to conclude that it is a pretext for discrimination against some of the testtakers. Giving in to political pressure to benefit African-American does not equate with an intent to discriminate against some but not all white, Hispanic and African-American testtakers “because of” their race. Justice Alito’s reasoning is at odds with Hazen Paper Co. v. Biggins, where the Court, in an age discrimination case, held that an illegitimate, even unlawful, intent to discriminate to deny the plaintiff his pension simply was no evidence of age discrimination. Of course, decisions can be motivated by more than one factor, but where is the evidence of another factor other than racial politics or the subjective intent to not disadvantage African American testtakers? If anything, Justice Alito has inadvertently provided a defense in this case that the City did not think to present. Perhaps its best defense would have been to admit that the City gave into political pressures. That may be a lot of things, but it is not evidence of an intent to discriminate “because of” race against the 17 white testtakers who sued first. Whether or not what he claims was the motivation for the City’s action is true, Justice Alito’s position does not support finding the City acted with intent to discriminate against the 17 Riccii plaintiffs.

The Court appeared to take a giant leap from the fact that the City knew the racial distribution of the testtakers and the racial consequences of using the test to concluding, as a matter of law, that the decision not to use the scores was “because of” the race of one of the six different groups. With whites, Hispanics and African Americans in both groups of those affected positively and negatively by whatever decision that was made, it is hard to see where intent to discriminate because of race against these particular plaintiffs played any role at all.

Should civil rights advocates take Ricci as a progressive step forward?  Ricci does seem to have tremendous potential for changing the approach to proving intentional discrimination to the advantage of plaintiffs: Plaintiff can establish liability simply by proving that (1) the defendant knew the racial or gender consequences of its decision and (2) it then made that decision and (3) the plaintiff suffered an adverse employment impact. The intent to discriminate element, which traditionally has been the hardest to prove, becomes simply a question of the defendant’s knowledge of the racial consequences without more.  Not only is plaintiff’s burden of proving intent vastly simplified, the Court’s approach seems to knock out the linkage, the “because of” race element, that supposedly joins a defendant’s intent to discriminate to an adverse employment action suffered by the plaintiff “because of” the victim’s race. All that is necessary is proof that the defendant knew the race of those affected by the decision and that those adversely affected were of one race or another or, as in Ricci, of as many racial groups that are involved. Go back to the opening quote. Once the racial consequences of the use of the test were known, a huge debate broke out, with some claiming the use of the test was discrimination and others claiming the refusal to use the test was discrimination. The City picked one of those two outcomes and the Supreme Court found it liable for discrimination in making that choice. If the City had picked the other outcome, would not there just be a different group of plaintiffs claiming disparate treatment discrimination?

Let’s see how this works now that the City of New Haven has announced that it will implement the test scores to promote firefighters to the lieutenant and captain openings. Without more evidence, the outcome on all six groups is the same though the valence has flipped: As before some, but not all, white testtakers, Hispanic and African-American testtakers are positively affected by using the test scores and some members of all three racial groups are negatively affected.  Assuming no other proof of subjective intent to discriminate because of race against anyone, is the City nevertheless liable for intentional disparate treatment based against those newly affected by the decision to go ahead using the test scores?  Just as in Ricci, the City will be acting, knowing the racial consequences of its action. Only this time, those who were advantaged when the test scores were not used are now disadvantaged and vice versa. This makes the City damned if it does, and damned if it doesn’t. But, that is the outcome that logical consistency seems to require based on the minimalist grounds relied on to find, as a matter of law, disparate treatment discrimination in Ricci.

We may get to find out how this will be worked out since some African-American testtakers who will be disadvantaged if the City goes ahead with its plan to use the test scores have moved to intervene in Ricci at its implementation phase and have filed EEOC charges that the decision to use the test scores is both disparate treatment and disparate impact discrimination. Further, Briscoe v. City of New Haven involves a claim by an African-American testtaker that the test caused disparate impact because of how the test score were weighted with oral test scores to make the rank order list. Briscoe claims that if the weighting were different, he would be among those promoted.

Some might argue that it is wrong to put the City in the situation of being liable to the Ricci plaintiffs for deciding not to use the test scores and to the new plaintiffs for deciding to use the scores. If the standard is in fact to be “color-blind” in decisionmaking that affects employees, that is, that making a decision knowing its racial consequences is disparate treatment discrimination, the result may seem harsh but it seems logically to follow. Further, holding the City liable to both groups does not put it in the position of having mutually inconsistent obligations: Because of Ricci, those white plaintiffs will get promoted (as will the two Hispanics and, if openings subsequently occur within two years, up to three African Americans as well). Because of a disparate treatment challenge recently brought against the City for now deciding to use the test scores, these new plaintiffs also get a remedy, but it would not include replacing those promoted using the test scores. Since these new plaintiffs have yet to be determined to be qualified for promotion, presumably, the City would be ordered to establish a nondiscriminatory system of promotions. Then, if these plaintiffs successfully wend their way through that process, they would be eligible openings for lieutenants and captains that occur after the time span for the use of the test has passed. Presumably, they would receive as backpay and frontpay the difference between their pay as firefighters and lieutenant or captain salaries which would last until they are promoted into openings as they arise.

If the Court has adopted a something like an absolute “color-blind” test of intent to discriminate for Title VII, the only way employers can insulate themselves from disparate treatment liability is to make employment decisions behind a veil of ignorance as to race. Employers may have to follow the lead of symphony orchestras that have come to use blind auditions when selecting new members of the orchestra. If there was no other evidence of discrimination, the effective use of a veil of ignorance would seem to protect the decisions from claims of disparate treatment discrimination since the racial consequences were not known by the decisionmaker when the decision was made. The “cats paw” case that the Supreme Court recently granted cert. on may illuminate this area of discrimination law.

Where did this radical “color-blind” standard of disparate treatment discrimination come from and how can it be? While, during the Sotomayor nomination proceedings, some talking heads and commentators denounced empathy as a factor in judicial decision making, the Ricci majority, and the dissent, exude empathy for the white plaintiffs who did go to great effort and expense to prepare for the exam and thought they won the prize: test scores high enough to result in their promotions to lieutenant and captain positions. The decision not to use the test scores dashed those expectations. Justice Kennedy expressed it this way:

“[A]fter the tests were completed, the raw racial results became the predominant rationale for the City’s refusal to certify the results. The injury arises in part from the high, and justified, expectations of the candidates who had participated in the testing process on the terms the City had established for the promotional process. Many of the candidates had studied for months, at considerable personal and financial expense, and thus the injury caused by the City’s reliance on raw racial statistics at the end of the process was all the more severe.” 

One way of looking at this from a technical point of view is that the Court feels compelled to justify finding that the reduced opportunity for promotion which resulted from the decision not to use the test scores was sufficiently adverse to satisfy the “adverse employment action” element of a disparate treatment discrimination case. Without finding some present impact on these white testtakers, it might be hard to conclude that they had suffered an adverse employment action. Dashing an earned reliance interest does provide an adverse employment action even though nothing has actually happened to these plaintiffs or, in fact, to any of the testtakers. But Justice Kennedy seems to make much more out of this. It appears to be the basis for jumping past the “because of” element of a disparate treatment case so that racial consciousness satisfies the intent to discriminate element which establishes liability when an adverse employment action results from that decision, whether or not that decision was “because of race.” 

Another way of looking at this earned reliance interest issue is as a limit on the scope of application of this newly announced disparate treatment doctrine: The employer does not commit disparate treatment discrimination if its decision that is based on the known racial consequences precedes the creation of reliance interests in anyone. Planning to use some sort of employment practice, such as the written test in Ricci, can include the employer projecting what the racial consequences of that use of that practice might be and revising the plan so as to reduce disparate impact, just as long as all the action takes place before anyone has a reliance interest in the implementation of the employment practice. This meaning seems consistent with Justice Kennedy’s concurring opinion in Parents Involved, as to the ability of school boards to act to establish school attendance policies that take account of the racial populations of the different schools just as long as race is not used to decide the school to which individual students will be assigned. So, not all action when the racial consequences are known constitutes disparate treatment discrimination. But the employer must be “color-blind” when some employees have an established reliance interest. So, perhaps, employers need not establish race-blind procedures to make all employment decisions, as long as no one has any established reliance interest as stake. An important new issue will be, therefore, when reliance interests are created because, once they are, risk averse employers will use race-blind procedures.

Does anyone believe that Ricci is a tremendous progressive step making employment discrimination cases very much easier for plaintiffs? Will a majority of the Court now empathize with the African-American plaintiffs who have challenged the use of the test scores in Ricci as disparate treatment discrimination against them?  If a majority of the Court avoids finding liability as to them, how will they support such a decision, given  the logical consequences of its move toward a color-blind standard of liability in this race conscious society of ours?

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would [...]]]> UPDATE: Seven African-American testtakers in Ricci have moved to intervene in Ricci, which is back at the district court for implementation of the Supreme Court decision. Also, African-American testtakers have filed disparate treatment and disparate impact discrimination charges with the EEOC. All this reported in the Connecticut Employment Law Blog, www.ctemploymentlawblog.com/2009/11/articles/decisions-and-rulings/black-firefighters.

The main thrust of Ricci focused on the disparate impact issue and its implications will likely be worked out in Briscoe v. City of New Haven, a disparate impact case brought against the City because it has now used the test scores challenged in Ricci. In Ricci, the City argued that its decision not to use the test scores was made to avoid the risk of disparate impact liability to the African-American testtakers who would not be promoted if the test scores were used.  The Court conceded, as did all the parties, that the use of the test scores would have resulted in a disparate impact on African-American testtakers. Using the “pass rate,” or cutoff score that was set for the test, less than 80% of the minority testtakers passed. More important, the actual use of the test among those who passed would have excluded from immediate promotion all the African Americans and all but two of the 22 Hispanic testtakers. (Three African Americans might have some chance for promotion if new openings occurred in the future during the life cycle of the test.) With that prima facie case of disparate impact discrimination conceded, the focus moved to the business necessity and job relatedness affirmative defense and the plaintiff’s surrebuttal possibility of showing that an alternative was available that served the interests of the City but resulted in less impact.

Given the posture of the case – using the risk of disparate impact liability as a defense to a disparate treatment claim – the City had the burden to prove that it would not be likely to carry its burden of proving the test’s business necessity and job relatedness or that disparate impact plaintiffs would likely be able to prove an alternative way promote to promote firefighters that had less impact. The Court rejected the arguments that the City had to prove it would actually lose such a disparate impact case or that its good faith belief sufficed. Instead, the City had to have a “strong basis in evidence” for believing it would be liable for disparate impact discrimination. In other words, it should be somewhat easier for the City to win the issue of its potential risk of disparate impact liability than it would be if disparate impact plaintiffs actually had to prove the City liable for disparate impact discrimination.

The major focus of the Court turned to whether the City showed it had a strong basis in the evidence that the test was neither “job related for the position in question [nor] consistent with business necessity.” Long story short, the City had spent a lot of money hiring a test consultant who did an analysis of the lieutenant and captain jobs and then drafted a written test asking questions about information relevant to the jobs. Instead of jumping from job analysis to test writing, the next step should have been, at least under the EEOC’s Uniform Guidelines on Selection Procedures, deciding what kind of test should be constructed, if any, and what strategy should be used to validate the test. Under the classic approach established by the professional standards of industrial psychologists, a pen-and-pencil written test for a job that did not require the workers to take such tests as part of the job would have to be validated using criterion-related validation.

Criterion-related validation would require giving the test, hiring all the testtakers, doing a subsequent evaluation of their job performance and then running a correlation coefficient to determine whether the test scores correlated with their subsequent job performance scores. Since criterion-related validation is not used out in the real world, the City’s test consultant simply argued that the written test was content valid, i.e., that the written test was a sample of the lieutenant and captain jobs even though test taking was not part of the job.

Relying on content validation, even though it technically was inappropriate for this written test, would not be not risky if the City had been sued for disparate impact discrimination. Basically, the lower courts have upheld pen-and-pencil tests as content valid even though the job did not require workers to take pen-and-pencil tests as long as the defendants had spent some real money constructing and administering the tests and the test questions asked about the job. So, given the judicial abandonment of the professional test validation standards and if business necessity and job relatedness were the only issues, the City would have prevailed on its affirmative defense. With the test being held to be validated, the City could use it. So, on the issue of the validity of the written test, it is no surprise that the Supreme Court found as a matter of law that the test was job-related and justified by business necessity. If that was the only issue, the City would lack a “strong basis” in evidence that it faced disparate impact liability if it had used the test results.

But, even if a defendant proves its written test is job-related and justified by business necessity, the plaintiff has one more bite at the apple. That is by showing that the employer refused to adopt an available alternative that had less disparate impact and served the employer’s legitimate needs. The Court did discuss this and, in light of the weak “available alternative” authority that has been developed in the lower courts, it is not surprising that it found that the City lacked a “strong basis” in evidence that potential disparate impact plaintiffs would prevail on their available alternative surrebuttal claim. While shifting the weighting of the written and oral scores to reduce reliance on the written part of the exam would be an alternative that the Court indicated would have reduced the test’s disparate impact, that was not enough to establish that the test was illegal. The Court found that the City produced no evidence to show that a different weighting would be equally valid in determining who was qualified. In other words, an alternative that reduced the impact of the test was a necessary but not sufficient condition for this surrebuttal stage. There would also have to be a strong basis in the evidence that a change in weighting the scores would have adequately served the employer’s interests. While there was some testimony before the City when it was making its decision whether or not to use the test scores that the City of Bridgeport had reduced the disparate impact of its written exams by changing its weighting with an oral score, the City did not have before it any evidence that doing this would serve the City’s legitimate interests. This is a bit debatable since the claim was made that the revised system used by Bridgeport worked just fine. All in all, applying the prevailing lower court authority to this pen-and-pencil exam, it was likely that the City would not have a strong basis in evidence that it would be liable if it used the test scores. In sum, the Court pretty much applied the prevailing authority from the lower courts regarding job-relatedness, business necessity and available alternatives in deciding that the City would have won, not lost, a disparate impact challenge if it had used the test scores for promotion.

This is where the recent, post-Ricci disparate impact claim, Briscoe v. City of New Haven, comes in. Plaintiff, an African American firefighter who took the test at the same time as the Ricci plaintiffs, claims that he would have been promoted if the weighting were changed and that the weighting of 60/40 favoring the written component had a disparate impact on African Americans. Further, he claims the City knew, even before it decided to use a written test for promotions, that using this 60/40 weighting would have a disparate impact. Nothing was done about the weighting issue because it was a longstanding feature of the collective bargaining agreement between the City and the firefighters’ union even thought the existence of that contract obligation would not be a defense to a disparate impact claim. Briscoe’s claim of impact is that, of the 77 candidates for the lieutenant position, he scored the highest on the oral part of the exam, but his overall score using the 60/40 weighting left him 24^th on the list and thus not eligible to be promoted. His complaint alleges:

“The City did not believe that the 60 percent weighting that it required was job related, and it knew that the weighting would have a disparate impact on African-American candidates: for example, on the lieutenant exam immediately preceding the 2003 exam, the African-American candidates as a group performed substantially better than the white candidates on the oral exam, but they were scored much lower overall because of the 60 percent weighting given to the written test.”

The job-relatedness of the written test, as decided in Ricci, is irrelevant to Briscoe’s claim because he focuses on the impact and job-relatedness of the weight given to the written test scores, not the test itself, when those scores were combined with the oral scores to rank order those who would be promoted. The claim relies on Connecticut v Teal, where the Court upheld a disparate impact challenge to part of an overall selection process – the use of a written test – even though there was no disparate impact resulting at the end of the whole selection process. In Teal, African-American plaintiffs had flunked a written exam and so were not eligible to continue further in the selection process. Because of the impact that the written test scores had in the overall process, they could challenge the test even though when the hiring decisions were finally made there was not a disparate impact on African Americans among those hired.  

Briscoe tries to escape Ricci entirely by making his disparate impact based on fact that the liability of the City is triggered by events that all occurred before the test was administered, before the consequences in terms of the scores of different groups were known and before the City decided not to use the test results because it knew the racial consequences of using the scores. Thus, the argument will be whether or not Ricci has any relevance because Ricci’s focus was at a time after the test had been given, its racial impact was known, including the racial composition of those who would be promoted if the scores were used. In Ricci, Justice Kennedy seems to emphasize that the case focuses on what happened once the test was given.

“Nor do we question an employer’s affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. . . . Title VII does not prohibit an employer from considering, before administering a test or practice, how to design that test or practice in order to provide a fair opportunity for all individuals, regardless of their race.”

That suggests that when the City was planning to use the written test it was required to look, rather than being restrained from looking, at the potential disparate impact of its subsequent use. In other words, Ricci only comes to bear once a test has been given and the successful testtakers have an established reliance interest in its use.

Assuming that the earlier time frame does makes Ricci irrelevant to his claim, Briscoe focuses his attack on the disparate impact of the weighting of the written and oral scores and not the rest of the test as it was constructed by the test consultant. Again, the complaint alleges that:       

“If the oral exam were weighed 60 percent and the written test 40 percent instead of the other way around, the plaintiff would be ranked ninth instead of 24^th and would be promotable. . . . If the written test were not considered [at all], . . three African-Americans would be in the top 12, and the plaintiff would be at the top of the list.”

Briscoe looks more deeply at the issue of what caused the disparate impact in the City’s promotion process than the simple recognition in Ricci that, at the end of the day, the City’s selection process caused a disparate impact on the basis of race. Based on Teal, the weighting element of the selection would appear to make out a prima facie case of disparate impact discrimination. That was not addressed in Ricci because that case focused on the justification, the job-relatedness, of the written test itself, not how the test results were to be used. 

If Briscoe establishes a prima facie case on the weighting issue, the burden of persuasion shifts to the City to demonstrate that the weighting formula it used was “job related for the position in question and consistent with business necessity.” The only evidence in Ricci about the weighting was whether it was an available alternative, an issue upon which the City failed to carry its burden of persuasion. That does not address the business necessity issue as to the weighting at all. And, even if the City did prove that the weighting formula it used was job related and consistent with business necessity, that should still leave to plaintiff the chance to prove that a different weighting formula was an available alternative that the City knew of and failed to adopt. Just because the City failed to carry its burden on that issue in Ricci, would not seem to bar Briscoe from carrying his burden unless the Ricci Court meant that, as a matter of law, the alternative of changing the weighting was not an available alternative. 

While Ricci seemed to adopt the weakened use of the professional test validation standards to justify a written test as job-related for jobs that did not involve test taking, that decision may not foreclose Briscoe. And, of course, if Briscoe is successful, that will have no negative impact on the Ricci plaintiffs, who have been and will be promoted using the results of the test that the Ricci plaintiffs and Briscoe took. If the City failed to carry its burden of proving that the weighting of the written and oral scores was job-related and consistent with business necessity, Briscoe would be entitled to a remedy. Presumably, the City would be ordered to adopt a new promotion process that would either not result in any disparate impact or, if it did, was job-related and consistent with business necessity. Briscoe would then be subjected to the new process and, if he showed himself to be qualified, would get the first opening for lieutenant after the cycle of use of the Ricci test was completed. He should also receive backpay plus front pay until he gets his promotion, with that determined by the difference between his earnings as a firefighter and what he would have earned as a lieutenant.  If, however, the City proved the test was valid but Briscoe proved on surrebuttal that an alternative was available, Briscoe would have to show that he was qualified if that alternative was used. If he did, he would be entitled to promotion once the Ricci test had run its course and back and front pay until that happens.

Given the success of the Ricci plaintiffs’ disparate treatment claim and assuming Briscoe will be successful on his disparate impact claim, the City of New Haven would appear to be damned for not considering the disparate impact before it set up the promotion procedure and then also damned for trying to take account of that impact once the test was given and the reliance interests of the successful testtakers had been established. But relief to the Ricci plaintiffs is not in conflict with relief to Briscoe: The Ricci plaintiffs get the promotions earned by their test scores and Briscoe would likely get the next opening of a lieutenant slot after the cycle for the use of the test had ended.

With that result, there would certainly be strong incentives for employers to investigate the potential disparate impact of any employment practices before using it and either modifying it to avoid that impact or be confident that its use can be shown to be job-related with consistent with business necessity with no alternative available to its use. Further, once the employment practice is implemented and there exists identifiable people who have legitimate expectations that their success pursuant to that practice would be followed, then it is likely too late for employers to refuse to honor those expectations. To fail to use the results of the practice would trigger disparate treatment liability unless the employer had a “strong basis in evidence” that it would be liable for disparate impact discrimination. One wonders, of course, whether an employer can prevent the creation of any expectations, or reliance interests, by making it clear from the start that the employer reserves the right not to use the results of the employment practice it uses.

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that [...]]]> In their Legislation casebook, William Eskridge, Philip Frickey, and Elizabeth Garrett observe that between 1984 and 2006, the Supreme Court cited the rule of lenity in just over one-fourth of its cases interpreting criminal statutes and agreed with the government’s interpretation in over 60% of those cases. I thought it would be interesting to see how those figures compare to the still-nascent Roberts Court’s cases interpreting criminal statutes. 

Here is what I found:

Between February 2006 (when Justice Alito joined the Court) and the end of June 2009 (Justice Souter’s last day on the Court), the Roberts Court decided twenty-five cases that involved at least some interpretation of a criminal statute. In fourteen of those twenty-five cases (56%), the Court interpreted the statute in a manner that favored the defendant. In only six of the cases did the Court reference the Rule of Lenity—four times in dissent, one time in both the plurality opinion and the concurring opinion providing the fifth vote, and one time in a concurring opinion alone.

The two justices most likely to reference the rule of lenity (i.e., who exhibited the highest rates of reference to the rule over the relevant time period) were Justices Scalia and Stevens, each of whom referenced or joined an opinion referencing the rule in four¹ of the twenty-five cases. Justice Ginsburg exhibited the next-highest rate of reference to the rule, invoking it or joining an opinion that invoked it in three² of the cases; Justice Souter invoked or joined an opinion invoking the rule in two³ of the cases, while Justices Breyer, Roberts, and Thomas did so only once.⁴ Justices Alito and Kennedy did not reference or join an opinion referencing the rule of lenity in a single case during this time period.

Upshot:  Eskridge’s, Frickey’s, and Garrett’s finding that the rule of lenity plays a role in just over one-fourth of the Court’s criminal statutory cases seems to be holding steady in the Roberts Court. The Court may be shifting ever-so-slightly to a more equal rate of interpretations that favor the government versus the defendant, though it is too early and the sample size is too small to tell. Perhaps most interestingly, the rule of lenity seems to be losing steam as an interpretive aid: In the past several Supreme Court terms, it almost always has been cited by justices in dissent—even in the fourteen cases in which the Roberts Court interpreted the statute to favor the defendant, it rarely (one time) relied on the rule of lenity to reach its result. In light of this trend, it may be worth asking whether this longstanding rule of statutory construction is nearing its deathbed?

————————————————————————————————-

1.  See James v. United States (Scalia and Stevens, dissenting); United States v. Santos (Scalia plurality opinion, Stevens concurring opinion); Begay v. United States (Scalia concurring opinion); United States v. Rodriquez (Stevens joining Souter dissenting opinion); United States v. Hayes (Scalia joining Roberts dissent); Dean v. United States (Stevens dissent).

2.  See James (joined dissent), Santos (joined plurality), Rodriquez (joined dissent).

3.  See Santos (joined plurality), Rodriquez (authored dissent).

4.  Justice Breyer authored a dissenting opinion citing the rule in Dean v. United States; Justice Roberts authored a dissenting opinion invoking the rule in Rodriquez; and Justice Thomas joined the relevant portionf of the plurality opinion in Santos.

In a recent article, The Hidden Legacy of Holy Trinity Church:  The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I [...]]]> How do canons of statutory interpretation come into being? What qualifies a court’s method of reasoning in a statutory case as a rule or canon of construction? Last week, I wrote about the Supreme Court’s use of the passive voice as an interpretive guide in two somewhat recent criminal cases. Does this mean that we now have a “passive voice” canon of statutory interpretation, at least in criminal cases?

In a recent article, The Hidden Legacy of Holy Trinity Church:  The Unique National Institution Canon (forthcoming, 51 William & Mary Law Review __ (2009))—in which I argue that the Supreme Court quietly has employed a “unique national institution canon” to give preferential legal treatment to certain special/unique American entities (Christian churches, baseball, railroads, tobacco, Native Americans)—I touch on this question of how different interpretive methodologies become canons or rules of statutory construction.

One position might be that any time the Supreme Court, as the highest court in the land, uses an interpretive methodology, that methodology becomes a rule or canon of statutory construction. This seems to be the view taken by William Eskridge, Philip Frickey, and Elizabeth Garrett in their Legislation casebook, which contains an appendix compiling “The Supreme Court’s Canons of Statutory Interpretation.” More generally, I would suggest that interpretive methodologies rise to the level of canons of statutory construction when they can lay claim to one or more of the following: (1) frequent use by the Supreme Court; (2) longevity, as when the methodology originated in English courts or long has been listed in Sutherland’s definitive treatise on Statutes and Statutory Construction;(3) grounding in some fundamental tenet of the American legal system (e.g., the Constitution); or (4) fostering consistency with longstanding judicial treatment of particular words or subject matters.

The expressio unius maxim, for example, gained its canonical status primarily through longevity—it is a Latin maxim used often by the English courts and is prominent in Sutherland’s—and also has been used frequently by the Supreme Court. The Rule of Lenity similarly derives its authority from its longevity (Justice Scalia has defended the canon on the grounds that it “is almost as old as the common law itself”) and from its basis in the fundamental constitutional due process principle that criminal laws should give fair notice of the behavior that is outlawed.  Interpretive techniques with a shorter historical pedigree, such as the whole act and whole code rules, have achieved canonical status because they promote the consistent treatment of statutory words, phrases, sections, and subject matter.  And one of the newest additions to the statutory interpretation canon, the federalism clear statement rule, earned its stature through frequent Supreme Court use coupled with a grounding in the fundamental constitutional principle of federalism.

In my view, the basic thread connecting all of these paths to canonical status is established convention. Whether their authority derives from pedigree, frequent use, constitutional authority, or precedential weight, the interpretive canons are treated as such because they are believed to reflect rules or norms with which legislators are familiar. The “canons” are given special status, rather than treated as ordinary legal argument styles or logical inferences, because they (are believed to) reflect the background understandings against which legislators draft statutory language and against which judges, lawyers, and those affected by a statute are meant to read that language.

By this reasoning, the Court need not label an interpretive methodology a “canon” of statutory interpretation for it to be considered such. Indeed, the Supreme Court routinely relies on well-known canons such as the “dog that didn’t bark” canon, the expressio unius maxim, and the whole act rule without identifying the canon on which it is relying, or even indicating that the argument it is making is based on an established canon of construction.   See, e.g., Scheidler v. N.O.W., 547 U.S. 9, 20 (2006) (dog that didn’t bark); Zuni Pub. Sch. Dist. No. 89 v. Dep’t of Ed., 550 U.S. 81, 88 (2007) (dog that didn’t bark); Rowe v. New Hampshire Motor Transport Ass’n, 128 S.Ct. 989, 997 (2008) (expressio unius); Arlington Cent. School Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 298 (2006) (expressio unius);  LaRue v. DeWolff, Boberg & Assocs., Inc., 128 S.Ct. 1020, 1025-26 (2008) (whole act rule); Hinck v. United States, 550 U.S. 501, 506 (2007) (whole act rule).  Thus, I submit that the nature and extent of the Supreme Court’s reliance on particular interpretive methodologies—rather than its act of giving a label to the methodology it is using—should drive our analysis of whether an interpretive methodology rises to the level of an established rule or canon of statutory construction.

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by [...]]]> Thanks to Dan et al. for the opportunity to guest-blog this month.  For my first guest post, I want to highlight a little-noticed tool of statutory construction that has reared its head in a handful of recent Supreme Court decisions: inferences based on Congress’s use of the passive voice in criminal statutes. I first noticed Supreme Court reliance on the passive voice to construe a criminal statute in Justice Kennedy’s dissenting opinion in Jones v. United States (1999).  Jones involved construction of the federal carjacking statute, 18 U.S.C. §2119, which then read as follows:

“Whoever, possessing a firearm as defined in section 921 of this title, takes a motor vehicle . . . from the person or presence of another by force and violence or by intimidation, or attempts to do so, shall—

(1) be fined under this title or imprisoned not more than 15 years, or both,

(2) if serious bodily injury (as defined in section 1365 of this title) results, be fined under this title or imprisoned not more than 25 years, or both, and

(3) if death results, be fined under this title or imprisoned for any number of years up to life, or both.”

Defendant Jones had participated in a carjacking with two other men.  While Jones and one of the other men held up the victims, a third man had stuck his gun in one of the victims’ ears and later struck that victim on the head.   The issue in the case was whether clauses (1), (2) and (3) of §2119 are sentencing provisions, specifying punishment/sentencing possibilities for the offense set forth in the first paragraph, or whether they are three different offenses (one being a carjacking offense, two being carjacking + serious bodily injury, and three being carjacking + serious bodily injury resulting in death).  The classification mattered because the indictment did not charge any of the facts relating to bodily injury mentioned in clauses (2) or (3) and the jury instructions defined the elements of the government’s burden of proof with reference only to the first paragraph of §2119.  If clauses (2) and (3) were deemed sentencing provisions, this would not matter, and Jones could be sentenced to 25 years based on the serious bodily injury caused to one of the victims; if clause (2) and (3) were read as separate offense provisions containing new elements, then the government’s failure to plead these elements in the indictment and prove them before the jury would preclude it from seeking the 25-year penalty against Jones.

In a 5-4 opinion, the Supreme Court concluded that “the fairest reading of §2119” was to treat the serious bodily harm provision as an element of a separate offense, rather than as a mere sentencing enhancement. Justice Kennedy, joined by three other dissenters, disagreed—relying in part on the fact that the statute “uses the active voice in the main paragraph and the passive voice in clauses (2) and (3).”  While recognizing that the rule was not an absolute one, Justice Kennedy argued that “[i]n the more common practice, criminal statutes use the active voice to define prohibited conduct”— and the passive voice when listing sentencing factors.   This inference based on the statute’s use of the “passive voice” certainly did not do all, or even the bulk, of the work in leading Justice Kennedy (or the other dissenters) to the conclusion that clauses (2) and (3) should be read as sentencing enhancements, but the dissenters did emphasize it to bolster/corroborate their reading of the statute.

More recently, in Dean v. United States, the Supreme Court majority relied on Congress’ use of the passive voice to bolster its interpretation of a firearms enhancement provision in 18 U.S.C. §924(c)(1)(A). That statute contains a three-part structure similar to the carjacking statute at issue in Jones:

“[A]ny person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.”

This time, there was no dispute over whether clauses (ii) and (iii) were sentencing provisions or separate offense provisions—the parties agreed that they were sentencing provisions.   The disagreement instead was over whether clause (iii) contains a requirement that the defendant intend to discharge the firearm. (Defendant Dean had carried a gun while robbing a bank; as he was collecting money from a teller’s drawer, the gun accidentally discharged.)  The Court, in a 7-2 opinion, held that clause (iii) did not contain an intent requirement.   Justice Roberts’ opinion for the Court began by noting that the text of clause (iii) “does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation.”  The opinion went on in the next paragraph to note that Congress’ use of the passive voice “further indicates” that the clause does not require proof of intent because the “passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor’s intent or culpability.  It is whether something happened—not how or why it happened—that matters.”

These two Supreme Court references to the passive voice as interpretively significant—employed a decade apart—appear to be isolated.  A quick Westlaw search reveals only four other post-1944 Supreme Court statutory opinions that even mention the passive voice, and those do so only to observe that Congress’s use of the passive voice leaves the statute’s meaning indeterminate.  See United States v. Wilson, Watson v. United States, Gladstone Realtors v. Village of Bellwood, and E. I. du Pont de Nemours & Co. v. Train.

So, what to make of the Court’s “passive voice” references in Jones and Dean? It is hard to tell.  If we can generalize from two cases, the Supreme Court seems most likely to give interpretive weight to a statute’s use of the passive voice when that use is repeated throughout a statutory provision (e.g., in multiple clauses), perhaps suggesting a deliberate structural choice.   Moreover, as with most grammar canons, the Court seems likely to employ passive-voice-based inferences only to bolster or corroborate a statutory interpretation reached through other interpretive canons and tools.   Upshot:  For counsel seeking to convince the Court to interpret a criminal statute in a particular direction, it is worth making passive-voice based arguments favoring a particular construction—but briefs are best off leading with other interpretive tools and throwing the passive voice argument in as a corroborative device.

Around Mile 11, I was hurting and turned from a combination of Irish rock and random songs to some pod casts. After some short New York Times and NPR pod casts, I remembered that I had downloaded a series of C-Span interviews with [...]]]> Here is a sentence I never expected to write. So there I was on Monday in the middle of running the Dublin Marathon when I decided to listen on my Ipod to a C-Span podcast interview with Justice Stevens. I had traveled to Dublin to run the actual Dublin marathon and to co-host Antitrust Marathon IV: Marathon with Authority, a round table discussion co-hosted with the British Institute of International and Comparative Law and the Irish Competition Authority.

Around Mile 11, I was hurting and turned from a combination of Irish rock and random songs to some pod casts. After some short New York Times and NPR pod casts, I remembered that I had downloaded a series of C-Span interviews with the current Justices and Sandra Day O’Connor.

I have a special fondness for Justice Stevens. We are both Chicagoans, Cub Fans, and Northwestern Law grads. More improbably, we even had the same antitrust professor (James Rahl) at Northwestern, albeit about 35 years apart. That plus the fact he was primarily an antitrust litigator before going on the bench was enough to get me to devote the next 30 some minutes, and about 3 miles, to the Stevens interview.

A lot of it was a fluffy discussion of his chambers and personal history. But mixed among the fluff and the questions for non-lawyers (What is certiorari?), there were a handful of interesting tidbits. Justice Stevens talked about the reasons and impact of not participating in the cert pool, the importance of writing his own first drafts, and his interest in having the court hear a few more cases than its current docket. There are no smoking guns or shocking revelations, but Justice Stevens does mention the need for Justices from diverse legal backgrounds, such as veterans and litigators, as an important mix for the Court to have on the bench. Justice Stevens is of course both and as far as I know the only current Justice to actually have made his living as a litigator.

The main thing I came away with was the genuine niceness of the good Justice which was my impression from the only time I ever met him. In 1993, I taught in a summer program in Innsbruck, Austria where Justice Stevens was lecturing. Instead of staying for the three days as promised, he stayed and lectured the entire week and interacted warmly with the students and the rest of the faculty. At one point, a student asked him to sign the packet of course materials which he did after class. Because he did not want to play favorites, he then stayed and patiently signed for more than a hundred students.

In the pod cast interview, Stevens demurred on picking a most important or favorite case. But when asked about a most memorable experience, he didn’t hesitate and proudly mentioned throwing out the first pitch at Wrigley Field before a Cubs game at the age of 85.

With that, I grinned, quickened my pace a bit, and headed up the next of an endless series of hills on my way around Dublin on a surprisingly warm and sunny late October day.

I have not listened to the rest of the interviews. But if anyone else has, please post if there are particularly revealing or interesting moments.

The Yale Law Journal Online is pleased to announce the publication of Citizens Not United: The Lack of Stockholder Voluntariness in Corporate Political Speech by Elizabeth Pollman, a Stanford Law Fellow and former practitioner at Latham & Watkins LLP.  Pollman’s piece covers the potential for sweeping changes to corporate political speech law in light of the Supreme Court proceedings in Citizens United v. Federal Election Commission.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil [...]]]> By this point, everyone probably knows that Chicago finished last among the finalists for the 2016 Summer Olympic and Paralympic Games. Truth be told, I am personally glad that Rio got the games, but civic pride had me hoping that we would come in second, rather than last. I certainly knew a few people who really wanted the games for our fair city, but most actual Chicagoans I talked to were neutral to negative about the whole enterprise, but quite fascinated by the possibility of being able to rent out their homes to tourists for exorbitant sums.

A less known aspect of the now failed bid was the connection between the bid and one of the landmark cases taught in most civil procedure, civil procedure, and complex litigation courses. A temporary 80,000 seat stadium was planned for the opening and closing ceremonies and certain track and field events including the finish of the marathon. The stadium was to have been constructed in Washington Park, a south side neighborhood just west of Hyde Park and the University of Chicago campus. The park would have been the site of massive improvements and some sort of smaller permanent facility would have survived the end of the Games.

The residential portion of Washington Park immediately to the south of the actual park was the site of one of the many ugly incidents in the early part of the 20th century as many Chicago neighborhoods sought to maintain segregated communities in the face of the tremendous expansion of the African-American population that came to Chicago seeking work. At one time, the Washington Park neighborhood was all white and subject to a racially restrictive covenant. In the depths of the depression, a white home owner sold to a middle class black family. The family endured harassment beyond description as angry mobs howled outside their home and the family faced daily threats and numerous incidents of vandalism and violence.

On the legal front, there were also attempts to enforce the racially restrictive covenants that were still lawful in the days before the Supreme Court’s 1948 decision in Shelley v. Kramer. But first, the white land owners had to establish that the covenant was enforceable as a matter of contract law. The covenant was to take effect only when 95% of the owners had executed it. An action in the Illinois courts held that the requisite percentage of owners had signed the covenant. Then certain white home owners sought to enforce the covenant against the new black owner arguing that he was bound by the results of the earlier state court litigation.

By now, you may have figured out that I am describing the landmark case of Hansberry v. Lee. In the United States Supreme Court, Justice Stone wrote on behalf of a unanimous court (three Justice concurring in the result). As my civ pro students can tell you, the case holds that Mr. Hansberry could not be enjoined from purchasing or living in his home as a result of the earlier litigation, since he had been neither a party in the earlier case nor adequately represented by either side in what had amounted to a class action under Illinois law. The case matters today for all manner of principles we explore at length in civil procedure, class action, and mass litigation courses, but it also stands as an important early landmark on the way to the later civil rights rulings of Shelley v. Kramer and eventually Brown v. Board of Education.

To better understand the personal issues at stake for the Hansberrys throughout this ordeal, we have the moving play A Raisin in the Sun by Lorraine Hansberry, who was a young child when her family moved into their new neighborhood. For a detailed and sensitive history of the underlying facts and the convoluted sets of litigation leading up to Justice Stone’s opinion, we are also fortunate to have Jay Tidmarsh’s chapter on the case in Civil Procedure Stories.

I would like to think that the Olympic Games would have done some good for Washington Park and all the surrounding neighborhoods that Mr. Hansberry and others suffered so greatly to integrate, but as a somewhat cynical Chicagoan I suspect that the burdens would have shared by the public at large and the benefits enjoyed by a privileged few. But if you’re ever in town, I hope you will consider visiting Washington Park and seeing where an important part of legal history took place and where a very different type of sporting history was nearly made this past week. If you get there in the next two weeks, there is even a pretty good circus on the site of where the Olympic Stadium would have been.

Notably, Judge Smith was quoted last year saying the following about the Ninth Circuit:

[Smith] credits this “mainstreaming” [evidenced in a lower reversal rate] of the Circuit to two main factors: the reduction in influence by Carter appointees and the changing dynamic of the confirmation process.

“It’s very rare anymore that you’re [going to] have three Carter judges sitting together [on a panel],” said Smith.

Smith believes the current composition of the Circuit explains the [...]]]> Ninth Circuit Judge Milan Smith, who just rejected John Ashcroft’s claim of qualified immunity in Abdullah Al-Kid v. John Ashcroft, wrote that the Bush Administration’s alleged practice of abusing of the material witness statute was “repugnant to the Constitution, and a painful reminder of some of the most ignominious chapters of our national history.”

Notably, Judge Smith was quoted last year saying the following about the Ninth Circuit:

[Smith] credits this “mainstreaming” [evidenced in a lower reversal rate] of the Circuit to two main factors: the reduction in influence by Carter appointees and the changing dynamic of the confirmation process.

“It’s very rare anymore that you’re [going to] have three Carter judges sitting together [on a panel],” said Smith.

Smith believes the current composition of the Circuit explains the reduction in extreme opinions: “We have 27 active judges and 22 senior judges [on the Circuit] . . . . Of those, Carter appointed 15 in total.”
Of the 15 Carter appointees, two have passed away, one has retired completely from the court, and nine have moved into senior status, a form of semi-retirement whereby a judge vacates his seat and hears a diminished caseload but keeps his full salary. Almost every Carter appointee is now over the age of 70, and Smith stated that it will not be long before the remainder of them “leave this vale of tears.” Only three Carter appointees remain active, including former Chief Judge Mary M. Schroeder and well-known Judge Stephen Reinhardt. According to Smith, the less critical atmosphere which allowed the appointment of these more strident and ideological judges changed during the Reagan administration.

I wonder how the Carter-holdouts felt about this set of comments when they appeared?  Maybe Judge Smith was misquoted.  But if this article represents his thought, it’s pretty clear that he seems himself as a pragmatic “mainstream” conservative, who wants to be seen as reasoanble and apolitical, making his evident annoyance with the government’s position in the Ashcroft case all that much more remarkable.

The Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online, the forthcoming online platform of The Yale Law Journal, will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process, on September 18, 2009, at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process. The conference is made possible by the generous support of the Oscar M. Ruebhausen Fund. Practicing attorneys, judges, academics, and students are invited to attend. There is no charge for the conference, but space is limited, so all attendees must pre-register here. [...]]]>

The Yale Law School Supreme Court Advocacy Clinic and The Yale Law Journal Online, the forthcoming online platform of The Yale Law Journal, will host a half-day conference, “Important Questions of Federal Law”: Assessing the Supreme Court’s Case Selection Process, on September 18, 2009, at the National Press Club in Washington, D.C. The conference will consider the nature and causes of changes in the Supreme Court’s docket in recent years, as well as suggestions for reform of the certiorari process. The conference is made possible by the generous support of the Oscar M. Ruebhausen Fund. Practicing attorneys, judges, academics, and students are invited to attend. There is no charge for the conference, but space is limited, so all attendees must pre-register here. Breakfast and refreshments will be provided. If you are unable to attend, podcasts of conference sessions and downloadable papers from the panelists will be made available by Yale Law School’s main website. Select papers will also be published by The Yale Law Journal Online. Information on the conference can also be downloaded by clicking here.  For more information on The Yale Law Journal Online and the conference, please contact YLJ Online Editor Kathleen Claussen here.

http://www.concurringopinions.com/wp-content/uploads/2009/08/yljonline.jpg

The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.

I think Fontana and Schwartzman are right that older appointees are a mistake for the Democratic party, even though they are probably better for [...]]]> David Fontana and Micah Schwartzman complain in TNR that President Obama has failed to appoint young judges to federal appeals courts:

The president has so far nominated five judges to federal circuit courts. On average, these nominees are 55 years old, more than a decade older than Sotomayor was when she was nominated to the Second Circuit. (She was 43.) For years, Republicans have been nominating sharp young conservatives to the lower federal courts. Now, rather than looking for young legal talent of its own, a Democratic administration seems to be favoring older nominees. In our view, this is a major mistake.

I think Fontana and Schwartzman are right that older appointees are a mistake for the Democratic party, even though they are probably better for the nation as a whole. (I favor more seasoned judges, particularly as life spans lengthen.)

This is one of many examples where Democrats are trapped in a difficult dilemma by Bush administration practices. If they appoint older judges, they let the circuit courts’ current rightward skew persist longer. But if they retaliate with relative youngsters, we lose the experience and insight that only age can bring to the courts. Same goes for executive appointments: many transparently political appointees of the Bush era have “burrowed in” to permanent positions at agencies, and balance probably requires similar strategies close to the end of the Obama administration — even if long-serving bureaucrats could do a better job in such positions.

Similar dynamics affect government transparency policies. For example, the Brennan Center recently “gave the Obama administration an F for its use of State Secrets” and has criticized it for continuing several Bush era policies of opacity. Here, again, a change would probably be for the better — but we all know that if a terrorist attack occurred, Dick Cheney’s acolytes would be on TV the next day declaring that Obama’s openness helped cause the carnage.

The health reform debate provides a final example. Bush’s plan for Medicare Part D was essentially an unfunded benefit. Rather than take on the tough task of real cost containment, he and the Republican Congress delegated it to fragmented private insurers with little power to make it happen. Conservatives now complain about a dodgy cost curve in Obama’s plans, but denounce virtually every proposed effort for cost containment as “socialized medicine.” Obama’s political fortunes probably rise if he follows the Bush path, but the country will be better off if he and Congress embrace fiscal responsibility.

In light of these examples, I think Fontana and Schwartzman have shed light on a larger phenomenon of the dangers of unilateral disarmament in an increasingly partisan age. If rules of cooperation like the filibuster exist at any less a status than constitutional norm, perhaps the Dems should think deeply about the proper deployment of the “constitutional option” pioneered by those on the other side of the aisle.

Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.

Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, [...]]]> It is time to stop privileging gender and race in Supreme Court nominations. History shows a very clear and disturbing pattern of decisionmaking along gender and racial lines.

Don’t believe me? Just look at the numbers, and you will see an existing, overwhelming pattern of decisionmaking based on race and gender. Here goes: For 180 years, every single person to sit on the Court was a white male. The list of Supreme Court justices between 1789 and 1967 is an unbroken chain of nearly 100 white men.

Since 1967, we’ve seen a total of two women and two Black men on the court. That is, four of the fifteen Justices since 1967 (27%) have been women or Black men, while eleven of the fifteen (73%) have been white men.

Supreme Court history has been one of total domination by white men for 180 years, followed by a period of token representation for other groups, but always a large controlling majority of white men. Not bad for a demographic group which currently makes up only 1/3 of the U.S. population!

So please, don’t tell me that it’s a problem to consider race and gender in this decision; you’re preaching to the choir. I wholeheartedly agree. It is time to end the extra points which are clearly given to white males in this debate. (After all, what is the likelihood that not just the first, or second, or third best person for the court was white and male, but that meritocratic dice just happened to roll that way, ninety-five times in a row? Or even 73% of the time in the past 40 years?)

Supreme Court history shows that we *already* have a tradition of privileging one gender and race, overwhelmingly, in the nomination process. And it needs to stop.

Holmes said, “The life of the law has not been logic; it has been experience.” The experiences and background of the Justices really do matter (cf Justice Powell, the deciding vote in Bowers v Hardwick, stating that he had never known anyone who was homosexual). Would Chief Justice Taney have written Dred Scott if he had been an African-American? I doubt it. (See also James Gordon’s article on whether the first Justice Harlan had a Black brother, and whether that influenced his dissent in Plessy v. Ferguson.)

The experiences of women of color are completely unrepresented on the Court right now, and have been completely unrepresented in the entirety of United States history. There has *never* been a woman of color on the court, and even now, after barriers of race and gender have supposedly fallen, the court membership is still (coincidentally, of course!) composed 75% (6/8; it was 7/9 until last month) of white men. It’s silly to say “well, a white man couldn’t say something like that and get away with it.” White men are already represented (at twice their percent of the populace) on the Court, while women of color are not and never have been.

Do I think that a wise Latina would be more representative of the people of the country, more likely to draw on experiences that are underrepresented, than would yet-another-white-male? Do I think that a wise Latina would add a lot to the Court? Hell, yes.

Confirm her, already!

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and [...]]]> Many thanks to Concurring Opinions and Dan Solove for inviting me to guest blog and to Dan for the kind introduction. I look forward to the visit and am excited to be part of C.O.’s talented and diverse group of bloggers.

As the Supreme Court’s term has just ended, I could not help but comment briefly on some of the Court’s pronouncements on criminal procedure. Because of my interest in comparative criminal procedure, I was curious to observe how in several recent opinions (Herring v. United States; Montejo v. Louisiana; Kansas v. Ventris), the Court suggested that “truthseeking” was a central concern of our criminal justice system and may trump individual liberties in certain cases. Specifically, the Court construed the Sixth Amendment right to counsel and the Fourth Amendment’s exclusionary rule more narrowly than before, out of concern that these individual rights and remedies interfere with the goal of truthseeking. For those familiar with the “inquisitorial” systems of continental Europe, the focus on truthseeking would sound familiar. European courts have long emphasized the preeminence of the search for truth in the criminal process. But is the adversarial American criminal justice system moving toward a new understanding of its goals, similar to that prevalent in inquisitorial systems? Are we moving away from our entrenched “anti-inquisitorialism“?

One of the latest decisions of the term suggests that truthseeking does not always win the battle. In D.A.’s Office v. Osborne (a 5 to 4 decision), the Court denied the existence of a due process right to DNA evidence after conviction. In that case, the State of Alaska conceded that there was no reason to doubt that the retesting of the evidence requested by Osborne would conclusively establish his guilt or innocence. If Obsorne were to be proven innocent, the retesting could also help determine the true offender.

The only reason given by Alaska for denying Osborne access to the DNA evidence was that it would interfere with the state’s interest in finality. The Court’s majority agreed and also declared its reluctance to interfere with Alaska’s decision by creating a federal constitutional right to access DNA after conviction. The Court acknowledged that 47 states and the federal government already provide for such access. It was interesting to note that both the majority and the minority made this point in favor of their position-the majority as a reason to defer to local democratic processes which are already addressing the question, and the minority to show that a consensus has emerged that post-conviction DNA access is part of our shared understanding of fundamental fairness.

In the end, for five justices, truthseeking was outweighed by the interest in finality of judgments and deference to states. If the 2008-09 term is any indication, the Court seems inclined to elevate the position of truthseeking relative to individual rights. But the Court is willing to let it take a back seat when it believes that it too severely threatens state prerogatives or the efficiency of the criminal justice system.

What makes the brash and balding 38-year-old such a hot media property is Scotusblog.com, the Web site he founded six years ago to obsessively track the high court. At 7:34 a.m. last Tuesday, an hour before news of the nomination leaked, he posted an essay on the likely lines of attack if President Obama picked Sotomayor. Had he guessed wrong, Goldstein says, he would have looked like “the world’s biggest idiot. I was out there on a limb.”

Three years ago, Goldstein joined the blue-chip Washington firm of Akin Gump, which also agreed to take on Scotusblog and is listed as the site’s host. [...]]]> Today’s Washington Post has an interesting profile of SCOTUSBlog’s Tom Goldstein, a partner at Akin Gump and founder of SCOTUSBlog. From the article:

What makes the brash and balding 38-year-old such a hot media property is Scotusblog.com, the Web site he founded six years ago to obsessively track the high court. At 7:34 a.m. last Tuesday, an hour before news of the nomination leaked, he posted an essay on the likely lines of attack if President Obama picked Sotomayor. Had he guessed wrong, Goldstein says, he would have looked like “the world’s biggest idiot. I was out there on a limb.”

Three years ago, Goldstein joined the blue-chip Washington firm of Akin Gump, which also agreed to take on Scotusblog and is listed as the site’s host. Despite the unorthodox arrangement, Goldstein says his staff, which includes veteran Supreme Court reporter Lyle Denniston, has complete independence. “Lyle could write that our clients are completely insane and evil and there’d be nothing to stop him,” Goldstein says in his 12th-floor office with a sweeping view of the Washington Monument. . . .

A graduate of American University’s law school, Goldstein founded a small firm — soon joined by his wife — in the third bedroom of their Northwest Washington home. He pursued his goal, to become a Supreme Court practitioner, by cold-calling lawyers in cases that might be headed for high court review. Goldstein was denigrated by more credentialed members of the bar as an overeager ambulance chaser, but the strategy worked: He has argued 21 cases before the Supreme Court. (Goldstein still finances his old firm, which includes his wife and remains at his home, now in Chevy Chase, a few doors down from Chief Justice John Roberts. The firm is an Akin Gump subcontractor.)

White House officials had asked to consult Goldstein on the court vacancy, but by the time he returned from a weekend in Paris, Obama had made his choice. Determined not to miss the action, Goldstein canceled a meeting in Los Angeles with a top producer about a reality series based on his life, the rights to which were bought by Sony Pictures Television. (”They must be smoking crack,” Goldstein says.) A poker fanatic who plays with pots as large as $100,000, he also delayed plans to compete in the World Series of Poker in Las Vegas.

For more, read the article.

The Yale Law Journal Online* is pleased to present the Note published by Sonia Sotomayor in Volume 88 (1979).  Judge Sotomayor, who has been nominated by President Obama to the Supreme Court of the United States, was a member of the Yale Law School Class of 1979 and an editor of The Yale Law Journal.   If confirmed by the U.S Senate, she would be the Court’s first Hispanic justice and its third woman.  Judge Sotomayor would also join two other Yale Law School graduates currently on the Court—Justice Clarence Thomas ’74 and former Journal editor Justice Samuel Alito ’75.

Judge Sotomayor’s piece, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, analyzed issues regarding Puerto Rico’s ability to maintain rights to its seabed if it pursued statehood.   The Note can [...]]]>

The Yale Law Journal Online* is pleased to present the Note published by Sonia Sotomayor in Volume 88 (1979).  Judge Sotomayor, who has been nominated by President Obama to the Supreme Court of the United States, was a member of the Yale Law School Class of 1979 and an editor of The Yale Law Journal.   If confirmed by the U.S Senate, she would be the Court’s first Hispanic justice and its third woman.  Judge Sotomayor would also join two other Yale Law School graduates currently on the Court—Justice Clarence Thomas ’74 and former Journal editor Justice Samuel Alito ’75.

Judge Sotomayor’s piece, Statehood and the Equal Footing Doctrine: The Case for Puerto Rican Seabed Rights, analyzed issues regarding Puerto Rico’s ability to maintain rights to its seabed if it pursued statehood.   The Note can be accessed here.

*Effective Fall 2009, The Pocket Part will be integrated into The Yale Law Journal Online, the new online companion and platform of the Journal.  Further details will be forthcoming.

Every time there is a Supreme Court vacancy, lots of thoughtful people say, “Gee, what the Court really needs is someone with major electoral experience.  A Governor or a Senator.”  But it never happens. Indeed, you have to go back to Earl Warren to find that sort of nominee.  Why does this idea always flame out (no pun intended)?

I think there are a few possibilities.  First, the specialization in constitutional law makes people less confident that people coming directly from politics can handle the job.  This wasn’t the case fifty years ago.  If you read congressional debates from that time, the [...]]]> As I’m stuck at the airport, I think it’s blogging time.  (I guess that that’s the legal equivalent of “clobbering time” in the Fantastic Four.)

Every time there is a Supreme Court vacancy, lots of thoughtful people say, “Gee, what the Court really needs is someone with major electoral experience.  A Governor or a Senator.”  But it never happens. Indeed, you have to go back to Earl Warren to find that sort of nominee.  Why does this idea always flame out (no pun intended)?

I think there are a few possibilities.  First, the specialization in constitutional law makes people less confident that people coming directly from politics can handle the job.  This wasn’t the case fifty years ago.  If you read congressional debates from that time, the quality of the legal analysis is usually high because the discourse was more accessible.  (It’s the same trend that causes judges to criticize modern law review articles for being too abstract or policy-oriented.)  As a result, it was reasonable for people to see Senators as potential Justices.

Second, the interest groups that play such a large role in the confirmation process are not interested in people without a judicial or academic record on constitutional issues.  If the President had selected Jennifer Granholm, for example, the usual suspects on the left probably would have been concerned. In this sense, the politician pick is more risky and carries little political benefit unless the person in question leads a powerful faction of the President’s party and wants the job.  (If Hillary had wanted this slot, you can bet she would have got it.)  That is, after all, how Earl Warren got his seat.

Third, many politicians find the prospect of being on the Court unexciting.  Bill Clinton offered the job to Mario Cuomo and George Mitchell, but both said no.  The life of a judge is very different from the life of a Senator or a top lawyer, and some people would miss the action if they got to the Court.

Undoubtedly, though, we’ll again hear what a great idea this is when Justice Stevens retires.

Let’s start with the obvious.  Most appellate court opinions aren’t subject to a cert [...]]]> Via TPM, I found that critics of Judge Sotomayor have made some hay of her reversal rate in the Supreme Court (50% of 6 cases heard).   Though I like data more than the next guy, I will freely admit that this use of quantitative empirical legal studies is demonstrably silly.  I’m going to try to demonstrate to you in this post that a reversal rate of fifty percent is exactly what the state-of-science would predict to be ordinary [or even below average], and a rate of zero (which some might think of as emblematic of a law-abiding judge) tells you that the judge in question might be departing quite severely from precedent.

Let’s start with the obvious.  Most appellate court opinions aren’t subject to a cert petition; almost no cert petitions are granted; only some granted cert petitions end up in full argument and a written opinion by the Supreme Court.  Throughout this long process, parties may settle their cases and exit the system.  They may do soduring briefing before the appellate court or after argument (with some limitations), they may settle after an opinion issues but before a cert petitition is filed, and they may settle thereafter until the Court rules (again, with some limitations based on mootness doctrine).  This potential for settlement after the appellate court issues its mandate creates selection effects.

Though such selection effects are likely less predictable & more dominated by wealth & party characteristics than the immense selection that occurs in the district court, it remains that case that the universe of cases that survive the decision to appeal and the decision to grant certiorari is significantly winnowed.  That winnowing produces a distinct set of cases.   Cases before the Supreme Court contain legal & factual issues more finely balanced than those that issued from the courts below.  To put it another way, cases are argued (usually) because the parties both believe they are going to win.  If the parties are rational & wealth neutral, an assumption that sometimes holds, we should expect that the resulting decisions from the Court will be a bit of a random walk.  (See my earlier post on bankruptcy scholarship for more on this hobby-horse of mine.  Also, note that much of this applies to civil cases, not criminal cases, which create unique settlement patterns.  The actual rate of reversal, over all cases, ranges between 60 and 75%.)

What’s the upshot?  An appellate judge’s “reversal statistic” tells you less than you think about the “merits” of her opinions, or even how such opinions stacked up against governing Supreme Court precedent.  Ironically, when a judge significantly departs from precedent either for or against the plaintiff, settlement may be particularly likely, as the parties’ chances above are quite clear: thus a judge who convinces her colleagues to depart from precedent often will almost never be reviewed or reversed by the Supreme Court. Cases where the judge stuck with precedent, by contrast, may face appeal and reversal, especially if the precedent shifted due to ideological change on the Court itself.

There’s lots of good work on this, much of it recent.  And what it teaches me is that we have no idea what an appropriate reversal rate for an appellate judge ought to be.  It also suggests that there is no way to evaluate the quality of an appellate judge’s work except to read her opinions and decide for yourself what you think of them.  This is a clear instance where statistics mislead.

“[T]here is very little point in having very much conversation about Sotomayor at all.  The more we talk about her, the less likely it is that we will actually be talking about her at all — unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct.  The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I’ve already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights [...]]]> Is by Paul Horwitz.  Seriously.  Best part?

“[T]here is very little point in having very much conversation about Sotomayor at all.  The more we talk about her, the less likely it is that we will actually be talking about her at all — unless we sidetrack ourselves with mostly trivial and pointless arguments about particular speeches or decisions, or about alleged smoking-gun issues of personal or even professional conduct.  The real conversations we ought to have are about the very questions that (in addition to the financial/power/etc. incentives I’ve already noted) cause our conversations about Sotomayor or any other nominee reach such a fever pitch, one that is inevitably disproportionate to the actual nominee himself or herself: should one be conservative or liberal, should one favor abortion rights or not, which party should take political primacy, and so on.”

Would write more, but am listening to people chat during a background briefing about Sotomayor for bloggers. And the band plays on.