It gives me no pleasure to be in the company of the majority justices in the Supreme Court’s New Haven firefighters decision, Ricci v. DeStefano, (particularly that of Justice Thomas, who only days earlier was the sole justice to support the right of high school administrators to strip search teenage girls in search of pharmaceuticals, arguing – with complete illogic – that failure to otherwise discover the drugs made it reasonable to infer that they were hidden in body cavities, rather than, say, simply not in her possession, as they indeed were not) – but independent thinking should at least occasionally bring you into mixed company. I offered my own view of Ricci in Affirmative Factions, back in April.

The majority and minority, in their opinions, both seem to support my sense of the justice of the plaintiff’s position and the injustice of the respondent’s. I tried to suggest then, though I may not have made it clear, that part of the confusion in public debate about controversial constitutional issues is in the course of our regularly confusing the legal elements of the consideration with the citizenry’s more general sense of morality or justice. Everyone does this, the lawyer’s and non, both before and after decisions, and it is remarkably the case that legal experts’ reading of the law so regularly conforms to their personal or ideological sense of justice. It is also true – as with abortion, for instance – that many seek to polarize views, rather than admitting complexity, because it appears politically, strategically more advantageous. So it is hard ever to oppose a specific affirmative action, particularly if you’re white, without being criticized for it on that basis, as Adam Serwer did Richard Cohen. Cohen left himself open to that criticism by calling decisions like the lower court ones against Ricci “punishment” for “all whites.” In that, Cohen got it precisely wrong, but he did point out, however, that some real individuals, who were not bigots and not actors in any discriminatory system were being made to suffer in the service of a social policy that, as abstractions and institutions will, has become at times callous to its affects on real individual people. In that, he got it precisely right.

The City of New Haven’s primary argument was that the results of the test left it open to legal action based upon “disparate impact” liability – that the test results had produced a disparate impact on African-Americans. Disparate impact, according to the Free Dictionary, is a “theory of liability that prohibits an employer from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.” where “a facially neutral employment practice is one that does not appear to be discriminatory on its face” but is rather “one that is discriminatory in its application or effect.” However, one needn’t be a lawyer, only a logical thinker, to recognize that this is a theory productive of post hoc reasoning: the results were not, roughly, proportionately equal; therefore, reasoning backwards, they are (as the law has defined them) inherently, in some manner, discriminatory even if not apparently so. It is also a back door to a quota system, a policy that Americans – whether opposed to affirmative action or supportive of it, as I am – have always consistently opposed.

Clearly New Haven was not comfortable with that argument alone, which would have more clearly left it vulnerable to accusations of a contradictorily “disparate treatment” violation toward the white and two Hispanic firemen who qualified for promotion – so it went about attempting to construct a case of prima facie discrimination, a case I argued back in April that was unconvincing and even, circumstantially, ridiculous, and so the Supreme Court majority found it. Wrote swing vote Justice Kennedy, “Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions.”

The majority, in their opinion, demonstrated just that abstract and institutional callousness to individual lives to which those four liberal justices, should be, by philosophical nature, opposed. Said Justice Ginsburg (she actually read her opinion before the court, to emphasize the strength of her dissent), the plaintiff’s “”understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

We can all live without this manner of sympathy. First, quite obviously the intent of the City, and indeed of the Court’s minority had it prevailed, was that there would be a new test productive of results in which at least some of the plaintiff’s would, yes, very purposefully have been denied the promotions they previously earned in preference to others. More profoundly, while the firefighters had no vested right to promotion – the city could encounter, for instance, financial conditions that would make the increased salaries untenable – they should have a right not to have the rules changed on them after the fact in the absence of any impropriety. They should have the right to expect that an employer’s offers and promises will be fulfilled. A liberal philosophy of compassion should not be so abstractly sacrificing individuals to a cause.

But the minority is politically committed to that cause and came down as anticipated, as did the majority, with its equal ideological predisposition. So politics was served. Legal experts will continue to argue the intricacies and vagaries of the statutes and precedent, so the law will be served. And justice, in this case, as I see it, was actually served too, if only incidentally.

AJA