Ricci and the Courts Race Neutral Desires

By now im sure those who read this are well aware that the SCOTUS reversed the lower courts decision in Ricci v. DeStefano. The Ricci decision couldnt have been all that surprising given the result of the Seattle Schools Cases. Its clear that at this point in time a majority of the court is of the belief that racism has been largely solved in this country, at least as it pertains to overt acts of discrimination in employment. Ricci sits squarely at the center of the conservative view that race conscious measures are simply not acceptable.

Justice Kennedy's majority opinion holds that an employer may not use race-conscious measures to try to avoid "disparate impact" liability under Title VII of the 1964 Civil Rights Act unless it "can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute." cite link

The problem of course is deciding what "a strong bases in evidence means". The Court shifts the traditional burden from one on employers to show they weren't discriminatory to a new burden on those who fear disparate impact suits to explain why the disparate impact arose. Marcia McCormick, who blogs at Workplace Prof Blog explains

The majority’s legal analysis starts from this premise: The City chose not to certify the examination results because of the statistical disparity based on race, and that this was express race based decision making which Title VII prohibits. Considering the race-based effects of the testing and rejecting the test on that ground was taking an adverse action because of an individual’s race. . . .

As a doctrinal matter, I think that the initial premise is troubling. To say that concern over the possibility of a discriminatory effect is itself a discriminatory motive seems to create a terrible theory of discrimination, a moral equivalence, that automatically pits groups against one another in competition for jobs. It’s also an implicit rejection of the basis for the Court’s early decisions on Title VII, that discrimination in employment was common, that absent some other good explanation for an adverse action, discrimination was a reasonable explanation for it, and that without incentives, employers would not have to look critically at what was really required to perform a job and whether this individual could do that. Instead, they could rely on old proxies for fitness without examining them critically. Now it seems that the Court is concluding that discrimination is rare and assertions of discrimination are suspect, and that the continued lack of attainment by people of color (and women, likely) is because of limitations in those people, not obstacles in the system. (emphasis added)

This is a very old fight. The question of whether the problem between races in our society is in the people or structural. Liberals find the problem to be structural, poor education, lack of a nurturing environment etc. The difference is that the conservatives now have a majority of the Court. The conservatives now have the ability to impress the ideology -- the theory of race -- that they hold onto reality. As much as i would love to believe that we are beyond race and that everyone has an equal start at this point in time that is simply not the case.

The failure to accept that there are structural inequities that have created minority underclasses and that creating this underclass is a negative for America is problem. Conservatives have a view that everyone operates as individuals and that the creation of the poor minority underclass has no effect on them or their lives or the greater future of America. This clearly isnt true.

Simply put, to maximize the potential of the American population we cannot allow a permanent poor minority underclass. Its a waste of talent and resources. As a country we need doctors, nurses, scientists etc and we need more and more brain power to compete in a global economy. What sense does it make to restrict actions in such a way as to prevent us from closing achievement gaps and increasing equality in our society?

I would prefer to carry out most of affirmative actionesque policies on an economic basis but its not always going to be convenient or helpful to do so. Cases of employment discrimination where minorities arent able to advance because of ostensibly neutral tests that create disparate impacts are such instances. If you have a test that consistently allows white people to advance over minorities by huge margins there are only a couple of possibilities for this. One is that the white people are simply better for that job. another is that there is something in the test that is advantaging whites. If whites were consistently better for the job wouldnt we need to specifically target the minorities to rectify what was making them so much worse on the test? Conservative reasoning about race conscious policy would seem to suggest that we cant. We should continue to let the minorities fail to advance and the whites to succeed and that no problems come from this. The SCOTUS probably agrees with that right now.

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Roberts Court as the Second Lochner Era

In examining some of the recent decisions handed down by the SCOTUS i have to feel like we might be witnessing history. I dont mean the positive jackie robinson breaking the color barrier history but the bad tanks rolling into Hungary kind. The Roberts court has issued and will continue to issue a number of important 5-4 decisions that will gut or otherwise roll back the rights and protections american's believe that they enjoy. The decisions of the Roberts Court will continue to do injustice until kennedy or one of the solidly right wing justices retires. However, the Courts decisions have fallen out of step with the general movement of the population and the Roberts Court will end up looking as out of place during its time as the Lochner Court did preceding and during the New Deal.

I think that it is very interesting that the conservative judicial reign began just as the conservative political reign came to a screeching halt. The political shift of the SCOTUS has been steadily rightward since the beginning of the Rhenquist Court and has reached new hieghts with the Roberts Court. Its almost a cruel twist of fate that we couldnt get rid of Bush quite early enough to prevent him from leaving his lasting impression on the court's balance.

The narrow 5-4 the majority commonly commands has led to several decisions that i think history will not look kindly upon. Included would be, District Attornies Office v. Osborne, Gross v. FBL Financial Services, Davis v. Federal Election Commission, Seattle Schools Case, to name a prominent few. In addition Roberts dissent in Caperton v Massey Coal is another decision likely to elicit criticism for a long time to come. Each of these cases exemplifies Jonathon Turley's description of roberts,

In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff. Even more than Scalia, who has embodied judicial conservatism during a generation of service on the Supreme Court, Roberts has served the interests, and reflected the values, of the contemporary Republican Party.

The problem of course is that the current Republican Party is incredibly unpopular. By reveling in conservatism Roberts and his conservative cohorts place the court in opposition to the general desires of the population. Lets not kid ourselves either, SCOTUS decisions are often policy based and policies are often a reflection of politics. For example conservatives generally have a deference to authority, a pride in stability, a preference for concrete rules, essentially combining into a formalist approach favoring procedural due process over substantive due process. I think these traits are strikingly evident in two of the above mentioned decisions, Massey and Osbourne.

In his Massey dissent Roberts writes,

Unlike the established grounds for disqualification, a “probability of bias” cannot be defined in any limited way. The Court’s new “rule” provides no guidance to judges and litigants about when recusal will be constitutionally required. This will inevitably lead to an increase in allegations that judges are biased, however groundless those charges may be. The end result will do far more to erode public confidence in judicial impartiality than an isolated failure to recuse in a particular case.

Roberts makes the assertion that allowing for more claims of bias will undermine the confidence that people have in the judiciary. He seems to be missing the big issue in this case, the fact that a judge sat on the case of a man who spent three million dollars to get him elected. Thats a lot of money in a judicial election where the incumbent lacks real name recognition and the electorate lacks sophistication on legal issues. Its hard to imagine that the money didnt move votes and nobody believes that the judge was impartial. these circumstances are extreme and unique. Yet Roberts has 40 horrible outcomes he predicts will result from the decision. The problem is that in this case, the judge really appeared to be biased and didnt get off the case. IMO TGM's Scott Lemioux has it correct when he wrote that,

Because of its fairly minimalist nature, it will take a while to fully gauge the effects of today's ruling. To the extend that today's decision creates disincentives to buy judicial elections and increases incentives for judges to recuse themselves when there is a glaring appearance of bias, it must be considered salutary.

We see the same disregard for the substantive justice in favor of form and wishful assertion when Roberts denies the ability of a prisoner, William Osburne, to pay for his own dna tests in an effort to show his innocence.

At the same time, DNA testing alone does not always resolve a case. Where there is enough other incriminating evidence and an explanation for the DNA result, science alone cannot prove a prisoner innocent. See House v. Bell, 547 U. S. 518, 540–548 (2006). The availability of technologies not available at trial cannot mean that every criminal conviction, or even every criminal conviction involving biological evidence, is suddenly in doubt. The dilemma is how to harness DNA’s power to prove innocence without unnecessarily overthrowing the established system of criminal justice.

Roberts central assertion here is that if they allow this guy to have DNA testing they have to allow everyone to have DNA testing. That jury verdicts will cease to have meaning because they can be second guessed by DNA. Citizens will think that the system isnt perfect because innocent people get convicted. This assertion is simply wrong. Allowing testing, especially if its on their own dime, will only improve confidence in the system. Allowing the innocent to remain behind bars in order to preserve the system illustrates a commitment to form and procedural due process. rather than substance. The system and procedure must be protected for its own sake instead of being protected because it provides real protections.

Roberts opinion in the Seattle Cases fits this line of thought as well. His oft quoted soundbyte -- "[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race[.]" -- exhibits a fundamental rejection of the complexity of racial inequity in this country. To simply proclaim everyone as being equal will not make it so. To provide entirely equal procedural protections wont help if minorities are never in a position to use them. Imagine everyone has to fill out the same forms for a job but the minority cant read the forms and the white people get half the answers from their parents. Same forms and on their face not biased but the minorities are at a huge disadvantage.

Taken together the body of law left by the Roberts Court will be one of the most business, government, wealthy, powerful, friendly in history. All of this goes against what the general public would most likely want. People want the innocent to be let out of jail and they want the judges who receive massive campaign contributions to recuse from the contributors cases. While racially oriented programs are much less popular they served the important purpose of helping to level out a structurally titled playing field. People dont want millionaires to simply be able to buy elections. People generally frown on allowing discrimination against the elderly. The list goes on and on.

While it may be cliche the arc of history bends towards justice and the Roberts Court does not seem to be bending that way. This indicates they are likely to stick out as a Court in opposition to the felt necessities of the time just as the Lochner Court does. The biggest problem is that we are stuck with the 5-4 split until Kennedy retires and a left of center judge is placed in that seat. only then does the court step back from the dismantlement of the warren courts constitutional protections.

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Letting Iranians Lead

The situation in iran is a potential watershed moment in the way America handles the growth of Democracy and freedom on the world stage. An examination of the situation clearly reveals that the right path and correct attitude is the one currently on display by President Obama. American adventures in democratic intervention do not have a strong history of success. The reason for this is that our actions often end up undermining the legitimacy of the people we want to support out of a misplaced sense of superiority and paternalism. We must avoid such displays at this moment in history.

One of the chief flaws in the traditional attitude of America on the world stage is the belief that every internal or domestic matter of other countries necessitates our involvement or pertains to strategic American interests. These beliefs have lead a mindset that requires action. In the minds of some in the US like Bill Kristol, if we arent acting in some way we arent doing the right thing. Take his position on this Iran situation,

And where is the American president? Silent.

Some argue that the brave Iranians demonstrating for freedom and democracy would be better off if the American president somehow stayed out of the fight. Really? But Barack Obama is president. His statement wouldn’t be crafted by those dreaded neocons who vulgarly thought all people would like a chance to govern themselves and deserved some modicum of U.S. support in that endeavor. It would be written by subtle liberal internationalists, who would get the pitch and tone just right. And the statement wouldn’t be delivered by the notorious George Bush (who did, however, weigh in usefully in somewhat similar situations in Ukraine and Lebanon). It would be delivered by the popular and credible speaker-to-the-Muslim-world, Barack Obama. Does anyone really think that a strong Obama statement of solidarity with the Iranian people, and a strong rebuke to those who steal elections and shoot demonstrators, wouldn’t help the dissidents in Iran?

I don’t believe it. I don’t believe Barack Obama believes it. As he put it in The Audacity of Hope: “We can inspire and invite other people to assert their freedoms;...we can speak out on behalf of local leaders whose rights are violated; and we can apply economic and diplomatic pressure to those who repeatedly violate the rights of their own people.”

Kristol makes a huge mistake in either failing or refusing to understand the dynamics of out history with Iran. President Obama was only just recently able to acknowledge our role in the overthrow of mossadegh.

The crushing of Iran's first democratic government ushered in more than two decades of dictatorship under the Shah, who relied heavily on US aid and arms. The anti-American backlash that toppled the Shah in 1979 shook the whole region and helped spread Islamic militancy.

After the 1979 revolution president Jimmy Carter allowed the deposed Shah into the U.S. Fearing the Shah would be sent back to take over Iran as he had been in 1953, Iranian militants took over the U.S. embassy - where the 1953 coup was staged - and held hundreds hostage.

If there is anywhere in the world that American interference or support for one domestic group or another is counterproductive it is Iran. Kristol seems shocked that merely expressing support for the anti-ahmadenijad crowd will cause problems. He shouldnt be. Hilzoy passes this on,

"When my student bemoaned the cautiousness of Obama administration's statements, his brother confirmed one aspect of Spencer Ackerman's account of the administration's behavior, saying that government forces are already accusing protesters of collaborating with the U.S., and that protesters are actually worried that Obama will make an explicit show of support, as that would restore some credibility to what the government has said about the election and, more importantly, could undermine a reform coalition in which some factions are none-too-fond of America."

This is an Iranian domestic matter. If we want the reform movement to succeed it must maintain credibility. It will not have any credibility if the hardliners manage to portray it as a repeat of the mossadegh coup in 53. Instead of barging into a delicate domestic situation where even our words can cause damage we should refrain and instead we should listen and let the Iranian people take the lead.

Letting the domestic populace choose their own path and destiny instead of forcing one on them is the surest way to establishing an effective relationship with Iran. Only when the Iranian people make their wishes clear in regards to our actions should the US act at all. If the Iranian people need something from us they can ask. It is a sign of respect to allow a country to work out its own problems without believing you can solve it better than they can. It is -- after all -- their country.

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Are the Courts Too Deferential?

Given the constant talk about the Court, the proper judicial philosophy etc. i came upon this oped in the WSJ that makes an interesting point and one that i happen not to have a terrible problem with -- that the courts are too deferential to congress. Its a rather interesting argument and one not heard too often and because of this it should be considered. The idea of "activist judges" has become somewhat received wisdom among conservatives. I think though that looking at this piece demonstrates the problem with a Court that isnt deferential.

The opening three paragraphs actually set the stage for an intersting discussion.

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.

The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.

It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.

People not familiar with SCOTUS history or US history in general might not understand exactly what Mr. Rowes is complaining about here--the end of the Lochner Era.

The Lochner era is considered one of the most embarrassing and troubling periods of the Court. The focus of the Lochner era was economic liberty, the freedom to contract. Basically the Lochner era court used formalistic reasoning and flawed premises to invalidate a great number of economic regulations dealing with the growth and industrialization of America. Child Labor Laws, Minimum Wage Laws etc. were struck down as being outside the power of Congress to regulate. It favored the wealthy and entrenched business interests over the workers.

The problem with striking down these laws dealing with economic regulation is that they were needed as society advanced and industrialized. Eventually when the US ran into the depression the need to take massive, coordinated national action in the economy ran into the Lochner court. This gave us the Roosevelt Court Packing plan. The actions of the Court against the new deal policies almost cost the Court its credibility and power.

since that point in time the Court has generally been wary of asserting such broad authority against congresses ability to regulate the economy. Mr. Rowes' argument is a libertarian based assertion that we should go back to the lochner era. This position isnt one that is too popular. Does Congress go to far in some cases? possibly. Mr. Rowes cites the incredible power given to the treasury secretary under TARP as a case where the SCOTUS should invalidate an act of congress. While i share his concerns about the power alloted to the TS under TARP that presents a perfect case for why Courts are so reluctant to step in.

The TARP bill and how best to handle the economy was a heavily debated and much publicized political and economic debate. The final bill was the result of much political wrangling. For the Court to step in and say sorry, this may be a good way to do things but we think its unconstitutional would be very tough. His case for why its unconstitutional is that it violates congresses duty to control the purse. I think that this would be a very hard sell to make absent an accompanying delegation clause argument which Rowe doesnt have. He wants the unelected Court to step into a giant political fight between elected officials in two other branches of government where it isnt fully competent and nobody has sued. I dont see it happening nor do i think it really should. The Court has learned all about the problems in setting limits on the commerce clause, which is another clause Mr. Rowes doesnt deal with.

His second example is hardly better.

In another example, America has become a patchwork quilt of laws serving special interests because courts refuse to protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four (according to recent research of Morris Kleiner published by the National Bureau of Economic Research), and the clamor by industry groups for more licensing grows unabated.

Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the "privileges or immunities" clause of the 14th Amendment.

a big reason we have licensing is not to prevent people from engaging in jobs they arent qualified for. Its a quality control measure. Licensed personnel are supposed to be a signal that the people you are hiring are competent and abide by predictable standards. Does it drive up costs? probably. By allowing quality to distinguish itself it allows quality to charge more. Without proper signaling the quality wouldnt be able to compete because it takes greater effort and investment to be quality. Investment that goes unrewarded when anybody can claim to be as good and nobody can tell the difference initially.

Mr. Rowes piece also focuses on the Libertarian concerns of property and the economy without mention of civil rights. This is an area i myself believe that the Court should assert a bigger role. Mr. Rowes may agree with me. I think the distinction between acting in a counter majoritarian fashion to protect civil rights and liberties presents a better base for argument than property and the economy. Thats a full post in itself. While we may agree that the Court should be more assertive in pushing back against congress and the president, i think i have shown that the places Mr. Rowes advocates, at least in his Op-Ed, are not the ones we really need to see it.

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On Pseudonymous Blogging

A long comment posted by me on donlephant in regards to the use of a nom de plume to blog.

Justin,

I read through the comments on the last post but didnt see a response to the central assertion i made. Namely that the cost in losing the good work done by pseudonymous bloggers will outweigh the benefit pushing them off the Internet. With the anonymity you have the ability to get the insight and benefit of people who would normally not do it. Why isnt that side of the calculation taken into account? You seem to be inordinately focused on the random anonymous hit piece, which i believe is actually rather rare. Especially considered that to have any impact at all the hit piece has to come from a high traffic yet anonymous site which, in the event the piece constituted libel would be subject to service of process and the destruction of anonymity.

I side with tully and his focus on the failure of relying on the idea that a name provides authority. you have one example in your post

"# Think of it this way: if every Sunday, The New York Times or The Wall Street Journal printed just one anonymous op-ed that slammed and slandered your favorite politician, would you think as highly of either paper as you do now?

# If not, then why should we not respect bloggers more when they put their names to their opinions? Not that we can force anyone to do anything, but we don’t have to take them as seriously, do we? And we don’t have to commiserate with them when a political rival outs them."

the problem here is that your not linking the fact that they dont put a name next to the piece with my loss of respect. I lose respect because the paper prints trash whether there is a name associated with it or not. Im not going to be excited because today the paper is printing trash by DeLay or Pelosi. I just dont think the name is what is important, a crappy argument by president obama isnt accorded more respect simply because it comes from him. If it cant stand without the name shouldnt we question the value of the contribution?

The idea that peoples names instead of their ideas are what is important plays a big role in the general crappyness of the media. Why is Newt Gingrich on TV everyday? He has a name. He is a "serious person". In reality he is a failed lawmaker from over a decade ago who isnt relevant to the future. If he had a pseudonymous blog would his ideas be taken seriously? i doubt it.

the last paragraph seems wrong in many ways,

The weight of the argument is hurt by the anonymous/pseudonymous nature of the author b/c the opposing viewpoint can take to other channels of communication and/or the argument will have to be taken up by people who can champion it via those channels, thus diluting the message.

does it really? Many things have come from the blogosphere and make it into the general discourse. Once its in the tm it doesnt particularly matter where it originated as long as its substantiated it some way. Strong messages have to be carried by many people not just the originating source. Think of campaigns, the sheer number of people going everywhere they can to carry the message. it didnt come from them but they are perfectly capable of defending the idea and the intellectual framework behind it. Messages become diluted when people cant adequately explain or defend them not because the original source isnt out there to do it.

Also, regardless of how you feel about the media, they’re out there everyday doing their thing and pushing everybody else to be transparent. So if you think bloggers can do the same thing behind an identity curtain, I’m sorry, but you’re mistaken. There’s less credibility in posting anonymously simply because of the mechanics of the media. Perhaps that will change in the future, but I don’t see how.

Are they really pushing for everyone else to be transparent? Is there now a general rule against anonymous sources? I dont here about the multitude of conflicts of interest that people in the media have. remember that whole military analysts employed by the dod thing? How did knowing their names and the media's supposed push for transparency work out while they were selling the war?

In the last post i asked you about the removal of anonymous sourcing or all anonymity of the Internet. I was not trying to say that you hold these positions or even like them in the least. my point was to say that the arguments in favor of outing bloggers work in those cases as well and that there isnt really a good line to draw between supporting the outing of bloggers and supporting the end of anonymity on the net generally. Credibility for all, accountability for all.

Again as a matter of policy, why is supporting the outing of anonymous bloggers thereby suppressing speech and ideas superior to supporting pseudonymous blogging?

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