The question of whether a municipality incurs liability when, motivated only by a desire to comply with federal anti-discrimination law, it takes race-neutral actions that have racially significant consequences, is undoubtedly an interesting one. To reach that question one must, however, first examine whether the municipality’s proffered desire to comply with federal law is in good faith and not a pretext. After that, we would normally ask whether that asserted desire, although in good faith, is not also in part motivated by other, racial, considerations. In this case, the municipality claimed that its actions were grounded solely in the desire to comply with federal law. The plaintiffs alleged instead that this was not the real reason for the city’s actions, and asserted that the city had other less salubrious, and directly racial-political, reasons for what it did.

The district court and the panel readily rejected the notion that the city’s stated reason was just a pretext. But neither court went on to consider whether the city was influenced by mixed motives. And that is why Judge Cabranes, in his dissent from the denial of en banc review, suggests that, since the plaintiffs alleged that their race motivated the defendants’ decision, the district court should have undertaken such a mixed motive analysis. He contends, that is, that the courts should have examined the situation as one in which a legitimate motive may have combined with an improper motive to bring about the challenged action. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). He would be precisely right . . . except for the fact that that type of analysis is not available to us in this case. It is not available for the most traditional of legal reasons. The parties did not present a mixed motive argument to the district court or to the panel.

It is the unavailability of mixed motive analysis that makes this case an especially undesirable one for elective review. The interesting issue the case might present – concerning the obligations of a municipality seeking only to comply with the relevant federal anti-discrimination law – is, in the circumstances before us, clouded by the allegations that something more is going on.

Given the plaintiffs’ failure to argue mixed-motive analysis, those allegations cannot be adequately evaluated. But they nevertheless cannot help but affect how we look at the city’s actions. And they may even influence, inappropriately, how we are inclined to rule on the underlying, “interesting” issue.

Difficult issues should be decided only when they must be decided, or when they are truly well presented. When they need not be decided – and rehearing en banc is always a matter of choice, not necessity – it is wise to wait until they come up in a manner that helps, rather than hinders, clarity of thought. That is not so in this case.

(Emphasis supplied.) As a question of judicial method, Judge Sotomayor's joining the per curiam opinion and the Second Circuit's denial of an en banc rehearing were exceedingly conservative (small c) and an exercise in judicial restraint. It so happens that I find the conservative approach and the judicial restraint exhibited by Judge Sotomayor and the Second Circuit the wrong way to go in this case. Yes, it would have been "reaching out" by the panel and an en banc Second Circuit to take up the issues identified by Judges Cabranes and Calabresi, but I think it would have been an appropriate case to do so.

But then, I am not one who kneels at the altar of judicial minimalism and judicial restraint. Persons like Taylor and Jeff Rosen however, have always claimed to be proponents of such an approach. Yet again, they prove that they honor that principle only in the breach. When they want a certain result, their commitment to judicial minimalism and judicial restraint is lightly cast aside.

And so it is regarding "judicial activism." Consider Taylor's description of what he thinks courts should do regarding established Supreme Court precedent on "disparate impact" and Congressional adoption of this jurisprudence by way of the Civil Rights Act of 1991:

Disparate-impact law -- as codified by Congress in 1991 -- specifies that an employer whose qualifying exam or other selection criterion produces a racially disparate impact can be held liable for unintentional discrimination only if (1) the test is not "job-related ... and consistent with business necessity," or (2) the employer is presented with and refuses to adopt another, similarly job-related test with less disparate impact.

But the unmistakable logic of Sotomayor's position would encourage employers to discriminate against high-scoring groups based on race -- no matter how valid and lawful the qualifying test [This is simply a false statement by Taylor. The decision does not in any way make such a rule. It is the core of Taylor's argument and it is demonstrably false. - BTD] -- in any case in which disproportionate numbers of protected minorities have low scores, as is the norm.

(Emphasis supplied. My comments in brackets.) Ignoring the false statement made by Taylor about the Ricci decision, his complaint about the "unmistakable logic" of Sotomayor's position is a complaint better addressed to the position of the settled law of the Supreme Court of the United States, CODIFIED INTO LAW, as Taylor himself admits, by the Civil Rights Act of 1991.

Obviously, Taylor disagrees with the settled law on "disparate impact" and he disagrees with the Congress' judgment, made into law by the Civil Rights Act of 19991. It is possible I suppose that Judge Sotomayor disagrees with it as well. She may in fact agree with Taylor on these issues as a matter of policy.

What she clearly disagrees with is Taylor's idea that an appeals court can decide a case based on its own policy judgments in the face of contradicting enacted federal law and settled Supreme Court precedent. Taylor asks a court to reverse the policy decision of the Congress and the jurisprudence of the Supreme Court while she sits on an inferior court.

In short, Taylor DEMANDS judicial activism here. He demands a court that will ignore and overturn by judicial fiat duly enacted federal law and settled Constitutional law.

I am no advocate of judicial restraint and judicial minimalism. I believe the Judicial Branch plays an important part in our political system. But even I shudder when I consider Taylor's brazen call for judicial tyranny. The Congress has acted on this issue. It passed a law on this very issue 18 years ago (ironically, when the Supreme Court engaged in judicial activism in Ward's Cove.)

Taylor and his cohorts prove yet again that there are no authentic adherents to "judicial restraint" - just a bunch of folks who pretend to do so.

Speaking for me only