On Slate, Stanford law professor Richard Thompson Ford argues that “conservatives” (like Second Circuit judge, and Clinton appointee, José Cabranes?) who complain about Judge Sotomayor’s treatment of the employment-discrimination claims presented by the New Haven firefighters in Ricci v. DeStefano should instead blame Justice Scalia and other conservative justices for making it too hard for plaintiffs to win employment-discrimination claims. But the grand irony that Ford posits rests on his distorted account of Supreme Court precedent and on his misunderstanding of the procedural posture of the proceedings in Ricci.

Ford contends that Frank Ricci has “been treated just like any other plaintiff suing for employment discrimination,” and that “the reason that people who sue for employment discrimination … rarely win their cases is that conservative judges have spent decades making sure they usually lose.” According to Ford, “as Justice Scalia made clear in [St. Mary’s Honor Center v.] Hicks, the employer doesn’t have to prove that there was a good reason for its decision; it needs only to claim that there was one.” “At this point, to keep his case alive, the plaintiff has to prove that the employer’s [claimed] reason is just a pretext.” Even if the plaintiff does prove that the employer’s claimed reason is a pretext, “the plaintiff will still lose if the judge or jury decides that the employer acted for a different nondiscriminatory reason from the one that was given.” Ricci’s “best argument” might have been to argue that the city acted from “mixed motives”—partly legitimate and partly discriminatory—but Ricci “didn’t argue it at trial,” and Sotomayor and her panel colleagues therefore couldn’t consider that argument.

Ford’s argument is a jumble that fails to distinguish between summary judgment and trial and that misstates the Supreme Court’s ruling in Hicks. Let’s examine Ford’s confusion:

1. Ford claims that Scalia’s majority opinion in Hicks establishes that “the employer doesn’t have to prove that there was a good reason for its decision; it needs only to claim that there was one.” That’s not accurate. What Scalia explains in Hicks concerns the so-called shifting burdens of production (as distinct from burden of proof) in the trial of employment-discrimination cases. Specifically: The plaintiff must first establish, by a preponderance of evidence, a “prima facie” case of discrimination. Once he has done so, the defendant has the burden of producing an explanation to rebut the prima facie case. It’s not enough for the defendant “only to claim that there was” a “good reason for its decision.” Rather, the “‘defendant must clearly set forth, through the introduction of admissible evidence,’ reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action.” (Emphasis omitted.) If the defendant does so, the plaintiff then has the full opportunity to demonstrate that the proffered reason was not the true reason and that unlawful discrimination was a cause.

2. Ford’s asserts that “at this point”—i.e., once the employer has merely claimed that it had a good reason for its employment decision—“to keep his case alive, the plaintiff has to prove that the employer’s [claimed] reason is just a pretext.” Any reader who knows that the district court granted summary judgment in favor of the City of New Haven would be justified in thinking that Ford, in referring to what a plaintiff must do “to keep his case alive,” is explaining what a plaintiff has to do in order to avoid having summary judgment granted against him.

But, of course, a plaintiff need not “prove” that the employer’s claimed reason is pretextual in order to survive summary judgment. The defendant employer, as the moving party, would instead have to persuade the judge that no reasonable jury, construing the facts in the light most favorable to the plaintiff, could determine that the employer had discriminated. In other words, a plaintiff would defeat the employer’s motion for summary judgment by offering evidence that, construed most favorably to the plaintiff, would enable a jury to find that the employer’s claimed reason was pretextual and that the employer engaged in discrimination. Ford himself acknowledges that the New Haven firefighters offered such evidence—namely, evidence that “New Haven refused to certify the exam results because of political pressure to promote blacks.”

3. Ford himself seems not to understand that the district court granted the City of New Haven’s motion for summary judgment. Why else would he contend that Ricci “didn’t argue [mixed motives] at trial”? Ricci and his fellow firefighters didn’t argue anything at trial because the district court’s grant of summary judgment prevented them from proceeding to trial.

Even President Obama’s Justice Department has argued to the Supreme Court that the district court was wrong to grant summary judgment against the firefighters—and that Judge Sotomayor and her panel colleagues were wrong to affirm the district court. Depending on how the issues of law now before the Supreme Court are decided, it is certainly possible that the New Haven firefighters will proceed to trial on their claims and, under the sensible framework that the Supreme Court has established, fail to persuade the jury of the merits of their claims. But that possibility should not distract attention from the fact that there is ample reason, as Judge Cabranes’s blistering dissent from denial of rehearing en banc illustrates, to blame Judge Sotomayor for not giving fair treatment to the firefighters’ claims.