Bench Memos

9-0 Against Sotomayor

In footnote 10 of her dissent, Justice Ginsburg, agreeing with the position that President Obama’s Department of Justice took, states:  “Ordinarily, a remand for fresh consideration [whether the City of New Haven in fact had good cause to act] would be in order.”  But because the majority saw no need to remand, Ginsburg explains “why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.”  (Emphasis added.)

In other words, Ginsburg doesn’t believe that final disposition of the case is appropriate.  She and her fellow dissenters therefore believe that Sotomayor and her Second Circuit colleagues and the district court were wrong to grant summary judgment to the City of New Haven.

[Update/clarification:  Ginsburg believes that Sotomayor and the other judges below applied the wrong standard:  “The lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act.”  I haven’t had time to examine whether Ginsburg’s standard is in fact the same that DOJ advocated and have therefore struck through the passage above.  I’ve also corrected a misquotation.]

Most Popular

Film & TV

In Unsane, Aetna Meets Kafka

Unsane doesn’t take the form of a horror film; at first, it appears to be a Hitchcockian thriller about mistaken identity or perhaps getting ensnared in a web of bureaucracy. Yet with clinical detachment it develops into a nerve-flaying story almost too agonizing to endure. Unlike most horror movies, it isn’t ... Read More
Science & Tech

The Real Deal With the Tech Giants

A bit of dialogue from the old television series Person of Interest, where a reclusive billionaire programmer and a former CIA agent use a giant supercomputer to predict crimes and save people: FINCH: Hester's living off the grid. No photos online and nothing on the social networking sites. REESE: I've never ... Read More

Viva l’Italia?

Italy has just had elections, with very interesting results. I wanted to talk with Alberto Mingardi, which I have. He is one of the leading classical liberals in Italy -- the director general of the Bruno Leoni Institute, in Milan. (Mingardi himself is Milanese.) He is also an authority in arts and letters. In ... Read More

Putin and the Cult of Leadership

On Sunday, Russian dictator Vladimir Putin won an unsurprising reelection-campaign victory against Communist Party candidate Pavel Grudinin, by a margin of 76.7 percent to 11.8 percent. The results were unsurprising because Putin is a tyrant who murders or imprisons political rivals, and who isn’t afraid to use ... Read More

Trump and Brexit Derangement Syndrome

I am not one of those Brexiteers who believe that Brexit and Trumpism are essentially the same phenomenon in two different countries. To be sure, they both draw on some of the same political trends, notably a distrust of elites and an upsurge of popular anger over evident failures of public policy such as illegal ... Read More

Stand Up to Putin

President Putin’s landslide victory in Russia’s presidential election was achieved against the lackluster competition of a group of mediocre candidates from which the sole serious opponent had been excluded; amid plausible allegations that his security services had tried to poison two Russians in England by ... Read More

Nordic Welfare States Worsen the Gender Gap

Following International Women's Day 2018, a host of policies have been promoted as ways to advance women's careers. CNBC, for example, has run a story arguing that policies such as parental leave for both parents can raise women’s incomes. In the Huffington Post we can read that adopting the welfare policies of ... Read More