Dahlia, you invite us to respond to John Payton’s minimalist view of the decision: that nothing really changes in the litigation arena. (I assume he would concede that the decision makes voluntary compliance by employers a much dicier proposition—now they really will have to wait to be sued.) I think John may be correct as far as today’s opinion goes, but I think the opinion also invites challenges to the showing that are necessary at the pleading stage to get a disparate-impact suit launched. The majority doesn’t think that numbers alone—a mere “statistical disparity based on race”—do it. The suggestion is that there has to be something else. Or maybe the burden on the defendants to justify their numbers will be lessened. Something more seems to be in play here, with a majority that is deeply skeptical of disparate-impact analysis in general and that borrows so freely from 14th Amendment cases in what seems very much a constitutional-avoidance construction of Title VII.
Jack Balkin has an interesting post on Balkinization wondering about the source and meaning of the court’s “minimalism” in the Voting Rights Act case last week and today in its stopping short of a constitutional holding. He plausibly suggests that the majority is responding to political realities of the Obama era and doesn’t want to assume the risk of striking down or crippling iconic civil rights statutes. This raises the question: What did the court think it was doing when it added these two cases to its docket in January?It had to do something with the Voting Rights Act case, of course, since it was a mandatory appeal. But it could have affirmed summarily, as the Bush administration urged, without putting everyone through the drill of plenary review and that ugly April argument. The grant in Ricci was purely voluntary—without a circuit conflict, and with only a brief per curiam opinion below, the case fell far short of meeting the usual criteria for cert. Maybe it just took a while for the meaning of the election to sink in. Or maybe there was something in the briefing and public reaction to the pendency of the cases that focused the court’s mind. In any event, it’s something of a puzzle that aggressive steps at the front end did not lead to full aggression at the end of the day.
Here’s another puzzle—the court’s final order list today grants, vacates, and remands the 6th Circuit case that it had been holding until after the resolution of Ricci. In that case, Oakley v. Memphis, the 6th Circuit reached the same result as the 2nd Circuit ruling that the court today reversed. So Memphis presumably gets another day in court while New Haven gets none, since the court, having set its new “strong basis in evidence” standard, doesn’t do what it would usually do (as Justice Ginsburg notes in her dissent) and send the case back for application of the standard. Instead, the majority goes on to decide the case itself. Can anyone recall a previous occasion (other than habeas in the old days) when the court adopted a new rule in the petitioner’s favor and then went on to apply it without a remand? Just wondering.