Ricci And Judicial Activism

Senator Mark Pryor (D-AR) released a statement upon the announcement of President Obama's choice of Judge Sonia Sotomayor for the Supreme Court. He said:

I believe this criterion is essential; activist judges have no place on the highest court of the land.

Pryor voted to confirm Chief Justice Roberts and for cloture for Justice Alito, both of whom were in the majority in the most blatantly judicially activist Court decision in recent memory, Parents Involved v. Seattle School District, where the court struck down a desegregation plan approved by the elected body chosen by the people of Seattle. That blatant act of judicial activism stands in stark contrast to the now controversial Second Circuit decision Ricci v. Destafano (PDF). The opinion is reproduced in its entirety below the fold.


We withdraw our Summary Order of February 15, 2008. Ricci v. DeStefano, 2008 U.S. App. LEXIS 3293, 2008 WL 410436 (2d Cir. Feb. 15, 2008).

Plaintiffs appeal from a judgment of the United States District Court for the District of Connecticut (Arterton, J.) granting the defendants’ motion for summary judgment on all counts.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D. Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.


The judgment of the district court is AFFIRMED.

(Emphasis supplied.) Ricci is an act of judicial restraint. The Second Circuit panel, which included Judge Sonia Sotomayor, deferred to a decision of the elected officials of the City of New Haven. Whether the decision was correct or incorrect, it was decidedly the opposite of judicial activism.

In discussing the issue of empathy, Dahlia Lithwick and Doug Kendall wrote:

Pity poor Frank Ricci. You probably already do. Ricci is a white firefighter from New Haven, Conn., who is the plaintiff in an important civil rights case before the Supreme Court this term. Ricci suffers from dyslexia, which made passing a written exam established by New Haven for promotion to lieutenant especially challenging for him. . . . What does Ricci's dyslexia have to do with the law? Very little, actually. The city of New Haven threw out the results of the test he took because it feared that the examination was discriminatory. . . . Regardless of how you and I may feel about Frank Ricci or how much he deserved to be promoted, discriminatory results like that can run afoul of Title VII of the Civil Rights Act of 1964. And in this case the results of the test far exceeded the statistical cutoff that suggests a constitutional violation has occurred.

. . . We have heard a great deal this week from the right about the stomach-churning evils of empathy. . . [C]onservatives have in fact been playing the empathy card a lot more effectively than progressives in recent years.

. . . When Chief Justice John Roberts battled for the rights of white schoolchildren facing arduous bus trips and educational hardship due to school integration programs in Seattle and Kentucky, he was evincing empathy for the white "victims" of affirmative action. It's a patent falsehood that liberal judges weep and bleed for their plaintiffs while conservative jurists treat plaintiffs with stony indifference. . . The notion that conservative jurists follow the law while liberal jurists emote wildly from the bench is just another political story. And repetition doesn't make it any truer. The best judges combine empathy with adherence to the rule of law. Given that both liberals and conservatives have long sought to benefit from that fact, isn't it high time we were all honest enough to admit it?

(Emphasis supplied.) Another falsehood that is perpetrated is the idea that conservatives are for "judicial restraint" while liberals support "judicial activism." Chief Justice Roberts has become the leading practitioner of judicial activism on the Court. And the much maligned Ricci court was engaged in judicial restraint. The correctness of the results in these cases can be debated. That the Seattle case was judicial activism and that the Ricci decision was judicial restraint can not be debated.

Time for the truth on these matters.

Speaking for me only

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  • Display: Sort:
    I believe this criterion is essential: (none / 0) (#1)
    by inclusiveheart on Tue May 26, 2009 at 12:56:05 PM EST
    dim sons of previous senators have no place in the Senate.

    As is normal for Pryor, he couldn't pick out an activist judge if he or she was the only person sitting amongst a gaggle of geese.

    I remember watching him talk about the US Attorney's scandal and couldn't help but notice that his "outrage" was generated by "sensing" that what was going on was "wrong", but he didn't really have a clue as to how to articulate exactly why or how what happened was legally wrong the way the prosecutors did.  He seemed more upset that the President had gone back on some deal they had brokered over that appointment than he was about the laws that were broken.

    well, (none / 0) (#2)
    by bocajeff on Tue May 26, 2009 at 01:16:04 PM EST
    It depends on one's definition of activist. And, whether one agrees with the opinion or not.

    Actually (5.00 / 1) (#5)
    by Big Tent Democrat on Tue May 26, 2009 at 01:27:30 PM EST
    It does not. It only requires intellectual honesty.

    An activist court intervenes and overturns decisions by the elected branches.

    A restrained court does not.

    Objectively, the Roberts decision was activist and the Ricci decision was not.

    That does not add to our understanding of whether either of the decisions was correctly decided.


    isn't that what the Supreme Court is there for? (none / 0) (#9)
    by of1000Kings on Tue May 26, 2009 at 01:35:27 PM EST

    therefore shouldn't the SC be an activist court?


    It should (5.00 / 0) (#11)
    by Big Tent Democrat on Tue May 26, 2009 at 01:38:17 PM EST
    apply the law and the constitution using accepted principles of interpretation.

    but as with any document written years ago (none / 0) (#12)
    by of1000Kings on Tue May 26, 2009 at 01:47:12 PM EST
    that we no longer have access to the thoughts of the original writer(s) (ie-the bible) the principles of interpretation are open to interpretation, depending on which point of view the interpreter holds....

    the principles of interpretation (none / 0) (#16)
    by Big Tent Democrat on Tue May 26, 2009 at 01:56:31 PM EST
    are applied by all.

    When it suits them.


    Intellectual honesty ... (none / 0) (#20)
    by Robot Porter on Tue May 26, 2009 at 02:43:11 PM EST
    in politics?

    Surely you jest.


    The problem with intellectual honesty (none / 0) (#21)
    by lobary on Tue May 26, 2009 at 02:59:05 PM EST
    is that it doesn't exist in the public discussion about the meaning of "judicial activism."

    You are absolutely right, of course, but you approach it from the perspective of a lawyer who takes pride in analyzing a legal opinion on the basis of the reasoning contained within.

    Unfortunately, most of our pols and pundits talk about "activist judges" in the political context, which was invented and continues to be dominated by the right-wing machine. "Judicial activism" is just GOP code aimed at undermining any judge who is not an ardent defender of originalism.


    that's the basic point.. (none / 0) (#3)
    by of1000Kings on Tue May 26, 2009 at 01:17:44 PM EST
    the definition of activism changes depending on whether one agrees with the principle or not...

    just try and watch Faux news today...


    Disagree (none / 0) (#6)
    by Big Tent Democrat on Tue May 26, 2009 at 01:27:50 PM EST
    See my response.

    I have a question about Ricci (none / 0) (#4)
    by ding7777 on Tue May 26, 2009 at 01:26:34 PM EST
    Is this the first time the city of New Haven administered this particular firefighter promotion test?  

    If not, did the previous firefighter promotion tests result in a "proportionate racial impact"?

    First time (none / 0) (#7)
    by Big Tent Democrat on Tue May 26, 2009 at 01:28:22 PM EST
    is my understanding.

    Judicial Activism (none / 0) (#8)
    by elrapido on Tue May 26, 2009 at 01:30:37 PM EST
    Is there no difference between a court striking down a law as unconstitutional and a court looking into the Fourth Amendment and finding a right to privacy and a later court using that ruling to find a right to abortion?

    Load the question up (none / 0) (#10)
    by Big Tent Democrat on Tue May 26, 2009 at 01:37:35 PM EST
    why don't you? Your comment is ridiculous. you ignorance about privacy jurisprudence is patent.

    Your misunderstanding of the concept of judicial activism blatant.


    Heaven forfend... (1.00 / 1) (#13)
    by elrapido on Tue May 26, 2009 at 01:51:33 PM EST
    that one would disagree with BTD.  I merely point out that not everyone seems to define judicial activism the same way.  Try to unwad your boxers.

    Well then (5.00 / 0) (#14)
    by Steve M on Tue May 26, 2009 at 01:53:37 PM EST
    the answer is no, there is no difference.  In both cases the courts are striking down laws as unconstitutional.

    You don't get to say "it's activism when the courts strike down laws for reasons I disagree with, but otherwise it's not activism."


    Your are incorrect. (none / 0) (#17)
    by elrapido on Tue May 26, 2009 at 02:38:51 PM EST
    Try rereading the comment.  In one case two laws were struck down in the others new rights were manufactured.

    Really? (5.00 / 2) (#22)
    by Steve M on Tue May 26, 2009 at 03:02:08 PM EST
    So in the abortion cases, no laws were struck down?  Oops, wrong.  "Rights were manufactured" is just some spin you chose to make up.

    Heh (none / 0) (#15)
    by Big Tent Democrat on Tue May 26, 2009 at 01:55:52 PM EST
    Heh yourself. (1.00 / 3) (#18)
    by elrapido on Tue May 26, 2009 at 02:39:49 PM EST
    You seem to get denser as you go along.

    Warning (none / 0) (#19)
    by Big Tent Democrat on Tue May 26, 2009 at 02:40:27 PM EST
    No personal attacks.

    It's Mark Pryor (none / 0) (#23)
    by ColumbiaDuck on Tue May 26, 2009 at 04:44:05 PM EST
    David was the dad.

    not activism (none / 0) (#24)
    by diogenes on Tue May 26, 2009 at 05:46:37 PM EST
    The constitution/case law/civil rights law establishes that there may not be discrimination based on race.  If you strike down a law because you think that it discriminates then that is not judicial activism.
    This is hardly similar to striking down laws banning abortions in 1972 when there was neither prior case law nor constitutional guidance and citing as reason a "penunmbra".    

    penumbra (5.00 / 1) (#25)
    by dws3665 on Tue May 26, 2009 at 06:52:34 PM EST
    has a specific legal definition. Your use of quotes suggests that you may not know what it is.

    Striking down newly established/recently enacted laws that discriminate or infringe on other, more established rights may not be considered judicial activism.

    Striking down established laws is, as is using the court to overturn precedents with respect to, say, 96 year-old anti-trust law, desegregation, and campaign finance.