Here’s the conservative view:
Good conservative judges apply the law rationally and they do not get involved in empathy and identity politics.
The issue before the SCOTUS on Monday: A test was given to those applying for promotion in a New Haven fire department; no blacks qualified for promotion with the test. Does that mean that the test was discriminatory? Apparently yes
1. Linda Greenhouse, prof of law at Yale: Congress enacted Title VII of the Civil Rights Act of 1964, the statute at issue in the Ricci case, with a simple command to employers: thou shalt not discriminate on the basis of race or other protected characteristics, including sex and religion. .. In a 1971 decision, the Supreme Court ruled unanimously that a test that was “fair in form, but discriminatory in operation” could violate Title VII even without proof that the discrimination was intentional. Congress eventually amended Title VII to codify that decision, Griggs v. Duke Power. The rule was clear: if a job requirement produced a “disparate impact,” the employer had the burden of showing that the requirement was actually necessary.
Powerful voices on the court, including Justice Anthony M. Kennedy, who wrote the majority opinion on Monday, began to call for something close to a zero-tolerance policy when it came to government counting its citizens by race for any purpose. And the court became skeptical of Congress’s making its own legislative judgments in ways that threatened to expand the boundaries of the court’s own narrowing constitutional vision.
As far as I can tell, the grounds for reaching a conclusion about disparate impact have been strenghtened, but also made highly problematic, since emplying it invokves racial thinking, according to the SCOTUS.
And a recurring them of the SCOTUS discussion: we all feel for the while guys! Greenwald notes:
…Justice Kennedy devotes multiple paragraphs at the beginning of his opinion to highlighting all of the facts (as opposed to legal arguments) which make people sympathetic to Ricci. Conversely, Justice Ginsburg, writing for the dissenters, noted upfront that the white firefighters “understandably attract this Court’s sympathy,” but it must be the law — i.e., long-standing legal precedent and the purpose of Title VII of the Civil Rights Act — which determines the outcome.