Bench Memos

Re: Sotomayor Vindicated?

A follow-up to this post of mine, which passed along the contention by Sotomayor supporters that her position and that of Justice Ginsburg and the other dissenters in Ricci were (in my paraphrase) “roughly comparable”:  Stuart Taylor, in “Justices Reject Sotomayor Position 9-0—But Bigger Battles Loom,” explains that the “difference between the Sotomayor position and the Supreme Court dissenters’ position is … important and revealing”:

Both, in my view, would risk converting disparate-impact law into an engine of overt discrimination against high-scoring groups across the country and allow racial politics and racial quotas to masquerade as voluntary compliance with the law.

But while Ginsburg at least required the city to produce some evidence that the test was invalid, the Sotomayor panel required no such evidence at all. Its logic would thus provide irresistible incentives for employers to abandon any and all tests on which disproportionate numbers of protected minorities have low scores.

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