Tuesday, June 30, 2009

One Thought on Ricci

I don't practice civil rights law, so I'm not sure if the Supreme Court got yesterday's Ricci decision right on the merits. But Sherrilyn Ifill over at the American Constitution Society blog makes a good point about how the Court reached its decision:

But this decision is revealing of the conservative majority's willingness to take unrestrained steps to fashion the results it seeks. Applying the law as it stands would surely have meant that the City of New Haven was well within its rights to refuse to certify the firefighters' promotions exam after finding stark racially disparate results. But guided, it seems, by a sense that denying white firefighters, including sympathetic lead plaintiff Frank Ricci, what they apparently believe is a right to certified results of a promotions exam, the Supreme Court in its own words "search[es] for a standard that strikes a more appropriate balance." In laymen's terms, this is known as "making it up as you go along." This is not in and of itself objectionable. It's in fact part of what judges do. But it does demonstrate that judicial activism is a two-way street, and undermines the argument that judges simply apply the existing law.
Bolded for emphasis. One of the problems with charges of "judicial activism" is that it's such a nebulous term as to become meaningless. It allows one side in the debate to preach that any particular legal issue or court case has a "right" answer, if only the judges would leave their personal philosophies at the courthouse door. The law just doesn't work that way and it never has.

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