Bench Memos

Re: 9-0 Against Sotomayor

To amplify/clarify my observations:  There is a sharp 5-4 divide among the justices in Ricci, and the legal position taken by the district court and adopted by Judge Sotomayor and her panel colleagues is obviously much closer to the position of Justice Ginsburg and her fellow dissenters than either is to the majority’s.  But even Ginsburg believes that Sotomayor applied the wrong legal standard (one overly favorable to the city):  “The lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act.”

I’m a bit puzzled whether Ginsburg believes that application of what she views as the proper standard would entitle the city to summary judgment, but I believe the answer is no.  Ginsburg explains in Part III-A of her dissent “why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.”  (Emphasis added.)  Although it’s not entirely clear to me at this point whether Ginsburg purports merely to be applying the usual standard for summary judgment or whether she is instead acting as ultimate factfinder, her various phrases suggest the latter.  For example, Ginsburg states that “petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.”  (Emphasis added.)  But in opposing the city’s motion for summary judgment, the petitioner firefighters would need only to show (with all inferences from the evidence drawn in their favor) the existence of disputed issues of material fact.

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