It so happens that I find Judge Cabranes' dissent on the issue of whether an en banc review of Ricci was in order quite compelling:
This appeal raises important questions of first impression in our Circuit--and indeed, in the nation--regarding the application of the Fourteenth Amendment's Equal Protection Clause and Title VII's prohibition on discriminatory employment practices. At its core, this case presents a straight-forward question: May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race-neutrality, on the ground that the results of that examination yielded too many qualified applicants of one race and not enough of another? In a path-breaking opinion, which is nevertheless unpublished, the District Court answered this question in the affirmative, dismissing the case on summary judgment. A panel of this Court affirmed in a summary order containing a single substantive paragraph. Three days prior to the filing of this opinion, the panel withdrew its summary order and filed a per curiam opinion adopting in toto the reasoning of the District Court, thereby making the District Court's opinion the law of the Circuit.
The use of per curiam opinions of this sort, adopting in full the reasoning of a district without further elaboration, is normally reserved for cases that present straight-forward questions that do not require explanation or elaboration by the Court of Appeals. The questions raised in this appeal cannot be classified as such, as they are indisputably complex and far from well-settled. These questions include: Does the Equal Protection Clause prohibit a municipal employer from discarding examination results on the ground that "too many" applicants of one race received high scores and in the hope that a future test would yield more high-scoring applicants of other races? Does such a practice constitute an unconstitutional racial quota or set aside? Should the burden-shifting framework applicable to claims of pretextual discrimination ever apply to a claim of explicit race-based discrimination in violation of Title VII? If a municipal employer claims that a race-based action was undertaken in order to comply with Title VII, what showing must the employer make to substantiate that claim? Presented with an opportunity to address en banc questions of such "exceptional important," a majority of this Court voted to avoid doing so.
The issues in Ricci are indeed complex and require a searching and wise consideration. You will not find such from the likes of a Richard Cohen (nor of course will you find them from Scalia, Alito, Thomas and Roberts. Cohen is incapable of it as a question of intellect. The other 4 as a question of good faith.)
In Richmond v. Croson, the Court addressed these difficult issues in an unsatisfactory way to my way of thinking. I recommend to you especially Justice Marshall's dissent, joined by Justices Brennan and Blackmun. But the starkness of Justice Blackmun's separate dissent has a way of getting to the nub of the issue about the Richard Cohens of the world:
I never thought that I would live to see the day when the city of Richmond, Virginia, the cradle of the Old Confederacy, sought on its own, within a narrow confine, to lessen the stark impact of persistent discrimination. But Richmond, to its great credit, acted. Yet this Court, the supposed bastion of equality, strikes down Richmond's efforts as though discrimination had never existed or was not demonstrated in this particular litigation. JUSTICE MARSHALL convincingly discloses the fallacy and the shallowness of that approach. History is irrefutable, even though one might sympathize with those who - though possibly innocent in themselves - benefit from the wrongs of past decades.
The Richard Cohens of the world can not understand this. Others who deign to call themselves "conditional liberals" will choose not to understand it. You will find them among the "liberal and moderate" supporters of the confirmations of Chief Justice Roberts and Justice Alito. The ones who speak of Justice Scalia's "towering intellect." They will be heard from now in multitudes as the great Justice David Souter rises for the last time from the bench.
This is a great test for President Obama. The politics for him look clear. The principles are also clear. His actions now will tell us much about the man. For this is a moment for principles. For history. For posterity.
Speaking for me only
