Ginburg's Footnote 10 in Ricci Gail Heriot

Josh Gerstein of Politico is reporting that today's 5-4 decision in Ricci will make it difficult to fault Judge Sotomayor for her decision below, since four justices agreed with her.  Says he:

"The ruling will be portrayed as a snub to Sotomayor, but the fact that four judges agreed with her position suggests that her assessment of the case was hardly outside the mainstream."

This is simply not true.  The justices disagreed with each other on whether the City of New Haven's proffered reason for scratching the test (fear of litigation) was legally sufficient, but the dissenters agreed that the plaintiffs should have been allowed their day in court to prove the proffered reason was a mere pretext for flat-out malicious discrimination against whites.  In other words, the dissenters agreed that Sotomayor and the other members of the Second Circuit panel erred.

Ginsburg makes it clear that she does not think that such discrimination is the most likely explanation for what happened (see p. 37), but she does concede that she would have remanded the case for further proceedings.  She agrees with the Solicitor General (who urged in an amicus brief that the case be reversed and remanded on exactly that ground), not Judge Sotomayor (who held that New Haven should prevail as a matter of law).  The decision was thus 9-0 on the issue of whether the Sotomayor opinion correctly disposed of the case.

Update:  The Gerstein article has been up-dated to remove the sentence I quoted above.

Another update:  Some folks are having a difficult time following what I mean.  Let me try to make it clearer:

At trial, both parties made a motion for summary judgment.  That means both parties thought that under the undisputed facts, they ought to win, but the plaintiffs had a backup argument that they ought to be given the opportunity to prove that the City is lying about its concern over litigation.  The trial judge had three options:  (1) Agree that under the undisputed facts, the plaintiffs should win; (2) Agree that under the undisputed facts the City of New Haven should win; or (3) find that the facts are disputed and therefore the case must go to trial. 

Plaintiffs made two arguments:  (a) that the City of New Haven's motivation for refusing the promotions--fear of litigation--was insufficient as a matter of law unless New Haven could show that the litigation would be meritorious; and (b) even if that motivation would be sufficient if  true, it was a mere pretext and the City of New Haven's was in fact motivated by a desire to prevent too many whites from getting the promotion.  The City of New Haven also made two arguments: (a) that its fear of litigation was sufficient as a matter of law to avoid liability on that basis; and (b) its fear of litigation was not a mere pretext for other motivations. 

The trial court went with (2) and entered summary judgment for the City without trial.  The Second Circuit affirmed. 

Five justices of the Supreme Court held that Option 1 was the proper course and granted summary judgment to plaintiffs.  For them, it wasn't necessary to decide whether the City's proffered reason was real or pretextual, because plaintiffs would win either way.  The four dissenters believed if the City of New Haven was inspired by fear of litigation, then it was not liable.  In that narrow respect they agreed with the Second Circuit judges and the district judge.  But their bottom line was that the Second Circuit judges and trial judges erred, because they had ended the case in summary judgment and they should have remanded the case. The plaintiffs were entitled to attempt to prove that the proffered motivation was a mere pretext. 

In other words, five justices voted for Option 1; four justices votes for Option 3.  No justices voted for Option 2, which was the option chosen by the Second Circuit judges and the trial judge.  

Comments

[Eric Rasmusen]

Ginsburg's footnote 10 is truly strange. It actually does seem to go with your option 2-- the absurd Sotomayor position that New Haven wins under undisputed facts--- although on a later page Ginsburg says that position 3 is OK. And in footnote 10, Ginsburg says that she and the other dissenters only adopt 2 because the majority adopted 1, even though 3 is better than 2. It's confusing. ALito certainly reads Ginsburg's bottom line as being number 2.

Ginsburg's problem is that the logic of her dissent makes 2 illegal, because the logic makes disputed facts crucial, but-- I deduce--- she'd like to help Sotomayor get confirmed, so she wants to make 2 her bottom line. That explains why the Government's (i.e., Obama and SG Elena Kagan's) brief-- written presumably without thinking about making Sotomayor look not so bad-- only argues for option 3, but GInsburg ends up with option 2.

[Potted Plant]

Professor Heriot -- I think that you misread, to a degree, Justice Ginsburg's dissent. It is technically true, as you state (and as many Republican supporters have argued) that all nine Justices of the Supreme Court disagreed with the Second Circuit that summary judgment should have been entered in favor of New Haven.

But the reason the dissenters felt that way was not, as you say, because they thought that there should be a trial on the City's "motivation." Rather, Justice Ginsburg's footnote 10 says just the opposite, arguing that the lower courts erred by focusing on the City's intent. According to Justice Ginsburg, the proper standard upon which to focus was not the City's intent, but rather whether the City had good cause to fear a disparate-impact lawsuit. (I'm not really sure that I understand the distinction Justice Ginsburg is trying to draw; perhaps she's saying that there's an objective standard for determining whether a disparate-impact suit is likely, and rejecting the subjective standard of analyzing the City's intent.)

In any event, I don't think that the Second Circuit can be faulted for focusing on the employer's intent in a case of alleged intentional discrimination, as was presented in Ricci. As I understand it, Justice Ginsburg's proposed standard would have been new law. Accordingly, it's disingenuous for some (not necessarily you) to suggest that all nine justices "rejected" the Second Circuit's reasoning, because the four dissenters essentially were making up a standard that didn't exist until the opinion was published.