Rejecting Griggs sub silentio. Justice Ginsburg writes:

In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.

As in Parents Involved, the Gang of 5 choose to ignore the Nation;s history of discrimination. Justice Ginsburg writes:

In the early 1970’s, African-Americans and Hispanics composed 30 percent of New Haven’s population, but only 3.6 per-cent of the City’s 502 firefighters. The racial disparity inthe officer ranks was even more pronounced: “[O]f the 107officers in the Department only one was black, and he held the lowest rank above private.” Firebird Soc. of New Haven, Inc. v. New Haven Bd. of Fire Comm’rs, 66 F. R. D. 457, 460 (Conn. 1975).

Following a lawsuit and settlement agreement, see ibid., the City initiated efforts to increase minority representation in the New Haven Fire Department (Department). Those litigation-induced efforts produced some positive change. New Haven’s population includes a greater pro-portion of minorities today than it did in the 1970’s: Nearly 40 percent of the City’s residents are African-American and more than 20 percent are Hispanic. Among entry-level firefighters, minorities are still underrepresented, but not starkly so. As of 2003, African-Americans and Hispanics constituted 30 percent and 16 percent of the City’s firefighters, respectively. In supervisory positions, however, significant disparities remain. Overall, the senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Department’s 21 fire captains is African-American. See App. in No. 06–4996–cv (CA2), p. A1588 (hereinafter CA2 App.). It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed.

(Emphasis supplied.) Griggs and the Congress when it enacted and amended Title VII recognized these realities. The Gang of 5 pretend it never happened and still does not happen.

Justice Ginsburg's dissent makes clear that the Gang of 5 has engaged n brazed and naked judicial activism. Justice Ginsburg writes:

[T]he Court today sets at odds [Title VII's] core directives. When an employer changes an employment practice in an effort to comply with Title VII’s disparate-impact provision, the Court reasons, it acts “because of race”—something Title VII’s disparate-treatment provision, see §2000e–2(a)(1), generally forbids. Ante, at 20. This characterization of an employer’s compliance-directed action shows little attention to Congress’ design or to the Griggs line of cases Congress recognized as pathmarking.

“[O]ur task in interpreting separate provisions of a single Act is to give the Act the most harmonious, comprehensive meaning possible in light of the legislative policy and purpose.” Weinberger v. Hynson, Westcott & Dunning, Inc., 412 U. S. 609, 631–632 (1973) (internal quotation marks omitted). A particular phrase need not “extend to the outer limits of its definitional possibilities” if an incongruity would result. Dolan v. Postal Service, 546 U. S. 481, 486 (2006). Here, Title VII’s disparate-treatment and disparate-impact proscriptions must be read as complementary.

In codifying the Griggs and Albemarle instructions, Congress declared unambiguously that selection criteria operating to the disadvantage of minority group members can be retained only if justified by business necessity. In keeping with Congress’ design, employers who reject such criteria due to reasonable doubts about their reliability can hardly be held to have engaged in discrimination“because of” race. A reasonable endeavor to comply with the law and to ensure that qualified candidates of all races have a fair opportunity to compete is simply not what Congress meant to interdict. I would therefore hold that an employer who jettisons a selection device when its disproportionate racial impact becomes apparent does not violate Title VII’s disparate-treatment bar automatically or at all, subject to this key condition: The employer must have good cause to believe the device would not withstand examination for business necessity. Cf. Faragher v. Boca Raton, 524 U. S. 775, 806 (1998) (observing that it accords with “clear statutory policy” for employers “to prevent violations” and “make reasonable efforts to discharge their duty” under Title VII).

In a way, Justice Ginsburg affirms Justice Scalia's complaint about today's ruling from the Court. Justice Scalia writes:

I join the Court’s opinion in full, but write separately to observe that its resolution of this dispute merely post-pones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one. . . . The difficulty is this: Whether or not Title VII’s disparate-treatment provisions forbid “remedial” race-based actions when a disparate-impact violation would not otherwise result—the question resolved by the Court today—it is clear that Title VII not only permits but affirmatively requires such actions when a disparate-impact violation would otherwise result. See ante, at 20–21. But if the Federal Government is prohibited from discriminating on the basis of race, Bolling v. Sharpe, 347 U. S. 497, 500 (1954), then surely it is also prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or municipal—discriminate on the basis of race. See Buchanan v. Warley, 245 U. S. 60, 78–82 (1917). As the facts of these cases illustrate, Title VII’s disparate-impact provisions place a racial thumb on the scales, often requiring employers to evaluate the racial outcomes of their policies, and to make decisions based on (because of) those racial outcomes. That type of racial decisionmaking is, as the Court explains, discriminatory. See ante, at 19; Personnel Administrator of Mass. v. Feeney, 442 U. S. 256, 279 (1979).

To be sure, the disparate-impact laws do not mandate imposition of quotas, but it is not clear why that should provide a safe harbor. Would a private employer not be guilty of unlawful discrimination if he refrained from establishing a racial hiring quota but intentionally designed his hiring practices to achieve the same end? Surely he would. Intentional discrimination is still occurring, just one step up the chain. Government compulsion of such design would therefore seemingly violate equal protection principles. Nor would it matter that Title VII requires consideration of race on a wholesale, rather than retail, level. “[T]he Government must treat citizens as individuals, not as simply components of a racial, religious, sexual or national class.” Miller v. Johnson, 515 U. S. 900, 911 (1995) (internal quotation marks omitted). And of course the purportedly benign motive for the disparate-impact provisions cannot save the statute. See Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 227 (1995).

Justice Scalia is right - the question is does Title VII and the amendments thereto violate the Fourteenth Amendment? To me, the answer is obviously no. Section 5 of the amendment provides that:

Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

The power the Fourteenth Amendment grants to Congress is broad. The Congress exercised this power when it codified Griggs by amendment after the Supreme Court's decision in Wards Cove. It is obvious that the Congress intended to permit the actions taken by the City of New Haven in the Ricci case.

But as in Wards Cove, the Supreme Court, in a brazen act of extreme conservative judicial activism, chose to distort beyond recognition Congress' enactment and reach a result they wanted.

This is the "minimalism," "moderation" and "restraint" that the Gang of 5 have provided and which many who supported Chief Justice Roberts (sadly, many of those people claim to be progressive) said a Roberts Court would provide.

Many of us knew the truth all along. That with the addition of the extreme activist conservatives Roberts and Alito, the brazen activism of the Court would only expand. As in Parents Involved, this activism is most evident when it comes to discrimination.

For if there is one thing the Gang of 5 has empathy for, it is the plight of the poor white male. Slavery? Jim Crow? Institutional and de facto discrimination against minorities and women? Never heard of that says the Gang of 5.

Respect for Congress? Not to be found from the Roberts Court. a brazenly extreme conservative judicially activist Court.

Speaking for me only