Arkansas Attorney General Dustin McDaniel states unequivocally in a conference call organized by People For the American Way that the SCOTUS "made new law" today in Ricci. McDaniel argued that the Ricci decision made it difficult if not impossible for states and localities to attempt to address discrimination in the workplace, their own and private workplaces.

Marge Baker of PFAW states flatly that the Court engaged in "judicial activism" today.

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Sen. Charles Schumer (D-NY) just held a press conference on the SCOTUS' Ricci decision announced today. The major points:

SCOTUS sets forth a NEW interpretation, overturning 38 years of understanding of the law.

Sotomayor unaffected by this. (This is an obvious point imo. But I guess it needs to be said.) You know all the talking points.

Andy Pincus, counsel for the National League of Cities spoke and made the strong point that today's Ricci decision makes the position of municipalities virtually untenable. The conflict created by Ricci puts municipalities (and States) in a position where it will be sued by one group or another. In short, the decision is a disaster for States and municipalities. So much for the "dignity" that once so concerned Justice Kennedy.

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In 1989, the Supreme Court in Wards Cove Packing v. Antonio significantly weakened the ban on disparate impact discrimination. Congress responded almost immediately by overturning Wards Cove with the Civil Rights Act of 1991. Right-wing justices tried their best to roll back civil rights law, but they were rebuffed by elected representatives.

In light of the SCOTUS' decision in Ricci, Congress must again act to rebuff the efforts of extreme right wing judicially activist Justices to roll back civil rights law. In dissent in Ricci, Justice Ginsburg wrote:

It was 5-4, as expected. Justice Kennedy and his conservative brethren prove yet again that when it comes to discrimination, their main concern is that white males not "suffer." More after I read the opinion.

The opinions (PDF). Justice Ginsburg in dissent, joined by Stevens, Souter and Breyer:

The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.

More as I read on the flip.

AP:

A closely watched discrimination lawsuit by white firefighters who say they have unfairly been denied promotions is one of three remaining Supreme Court cases awaiting resolution Monday.

That would be Ricci v. DeStefano. I have written numerous posts on Ricci (particularly on existing "disparate impact" jurisprudence and extreme conservative judicial activism) and will write many more I am sure after the SCOTUS announces its decision. The reason is obvious - Judge Sonia Sotomayor's joining of a panel affirmance of a district court's dismissal of a white firefighter's Title VII action. One of the reasons Ricci has become a flash point is the incompetence of American journalism. Consider the AP report I link:

The strange idea, that has held for quite a long time, that the Senate must defer to the President on judicial nominee is thankfully dying a slow death. Republican hold ups of President Obama's judicial nominees (including attempts to delay the confirmation hearing for Judge Sonia Sotomayor) are being explained as a "they did it first" maneuver. Simon Lazarus argues that this justification is disingenuous. That may be. But that discussion avoids the central point - the Senate should never be a rubber stamp for the President's judicial nominees.

I wrote a detailed post on why I think so. But whatever I think, it seems clear that going forward, whoever is President, his (or her) political opponents in the Senate will ensure that the Senate carries out its constitutional role of Advice and Consent. Including regarding a nominee's ideology. In my view, that is a good thing. I thought so for as long as I have considered the issue. I expressly said so in 2005. And I say it again now.

Speaking for me only

In an eight-to-one decision, the Supreme Court ruled this morning thaat “a school’s strip search of an Arizona teenage girl accused of having prescription-strength ibuprofen was illegal.”

Who dissented? Clarence Thomas.

Writing for the majority, and finding there was a Fourth Amendment violation, Justice David Souter said:

"Savana's subjective expectation of privacy against such a search is inherent in her account of it as embarrassing, frightening, and humiliating. … Here, the content of the suspicion failed to match the degree of intrusion."

The Court also ruled, however, that the school officials are immune from personal liability for the strip search.

In a 8 to 1 decision (pdf), the Supreme Court allows the Voting Rights Act to survive....barely.

The justices, voting 8-1, chose not to decide the constitutionality of a provision requiring that officials in eight states and parts of eight others get Justice Department clearance before making changes. The court instead said a small Texas utility district and other governmental bodies could seek an exemption. Justice Clarence Thomas issued a partial dissent.

Perhaps one of the main ways to read the Court’s ruling, then, is that it it a warning to Congress that it needs to reconsider Section 5, and shore it up, if it can, with a new formula for coverage, and provide some assurance that it will no longer single out some states to bear Section 5’s obligations in ways that the Court suggested were now unequal.

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In a setback to requests for DNA testing by convicted inmates, the Supreme Court today decided the Alaska case of District Attorney's Office vs. Osborne. The opinion is here (pdf).

In a 5-to-4 decision, the court found against William G. Osborne, a convicted rapist from Alaska. But the decision does not necessarily mean that many innocent prisoners will languish in their cells without access to DNA testing, since Alaska is one of only a few states without a law granting convicts at least some access to the new technology.

“DNA testing has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty,” the majority conceded, in an opinion written by Chief Justice John G. Roberts Jr. “The availability of new DNA testing, however, cannot mean that every criminal conviction, or even every conviction involving biological evidence, is suddenly in doubt.”

The Innocence Project (which represented Osborne) calls the decision disappointing but of limited impact. ScotusBlog has more. .[More...]

In his latest broadside against Judge Sonia Sotomayor, Stuart Taylor revisits Ricci v DeStefano. In addition to a naked call for judicial activism (I'll address that point at the end of this post), Taylor takes issue with the factual findings of the District Court, the per curiam panel decision and, though Taylor chooses to ignore it, the concurrence in denial of en banc rehearing of the highly respected Second Circuit judge Guido Calabresi. Taylor writes:

The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.

In terms of viewing the law, this is an erroneous method for evaluating a legal opinion. Disagreeing with the factual conclusions of a judge or an appellate panel is not the same thing as saying a judge got the law wrong. In terms of Taylor's view of the facts, it is mystifying that he chooses not to address the concurrences to the denial of en banc rehearing by Judges Parker and Katzman (PDF), but especially that of Judge Calabresi (PDF). Judge Calabresi wrote:

The White House wants you to believe that Judge Sotomayor is tough on crime. Conservatives want you to believe that she is soft on crime. Neither side cares to ask whether she will be a diligent guardian of the constitutional rights of the accused.

Our review of the evidence cited by propagandists to support their respective "she's tough" and "she's soft" positions began (in part 1) with a look at Judge Sotomayor's early career as a prosecutor. Given what we hope is the immense difference between the job duties of a prosecutor and a Supreme Court Justice, that period of her life told us relatively little about the approach she will take to the criminal justice issues that will come before the Court. Let's venture to the next stage of Judge Sotomayor's career to see if the evidence brings her criminal justice philosophy into sharper focus.

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Republicans have a long and successful history of demonizing Democrats as "soft on crime" -- or at least they did until Bill Clinton taught Democrats to be even tougher on crime than Republicans. Instilling fear of criminals and of the "liberal" politicians and judges who supposedly coddle them was such a successful strategy that conservatives adapted it after 9/11 to promote fear of terrorists while claiming that Democrats lacked the resolve to battle them. With the meek acquiescence (and often the eager support) of Democrats who feared Election Day more than crime or terror, conservative efforts to protect the nation by enacting "tough" legislation and appointing "tough" judges have been tough on the Constitution.

For the moment, the public's fear of criminal violence has been supplanted by fears of job loss and Republican misgovernance. Lacking fresh ideas to add to their thin playbook, conservatives with time on their hands are nonetheless giving the politics of fear another try by attacking Judge Sotomayor as a soft-hearted liberal who will "favor criminals and hinder law enforcement." Instead of responding that the conservative judges appointed by Republicans have too often favored unchecked police and executive power while hindering civil rights, the predictable but disheartening White House response is a public relations campaign (complete with law enforcement endorsements) to convince the public that Sotomayor's record as a crime-fighting prosecutor, a tough sentencing judge, and a police-friendly appellate judge proves that she is no softy liberal. How long will it be before the White House begins to talk up the similar career paths that Judge Sotomayor and Justice Alito have followed? (Shudder.)

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