Wards Cove II: Congress Must Overturn SCOTUS' Ricci Decision

Earlier this month, I cited Ian Millheiser on Wards Cove:

In 1989, the Supreme Court in Wards Cove Packing v. Antonio significantly weakened the ban on disparate impact discrimination. Congress responded almost immediately by overturning Wards Cove with the Civil Rights Act of 1991. Right-wing justices tried their best to roll back civil rights law, but they were rebuffed by elected representatives.

In light of the SCOTUS' decision in Ricci, Congress must again act to rebuff the efforts of extreme right wing judicially activist Justices to roll back civil rights law. In dissent in Ricci, Justice Ginsburg wrote:

The Court’s decision in this litigation underplays a dominant Title VII theme. This Court has repeatedly emphasized that the statute “should not be read to thwart” efforts at voluntary compliance. Johnson, 480 U. S., at 630. Such compliance, we have explained, is “the preferred means of achieving [Title VII’s] objectives.” Firefighters v. Cleveland, 478 U. S. 501, 515 (1986). See also Kolstad v. American Dental Assn., 527 U. S. 526, 545 (1999) (“Dissuading employers from [taking voluntary action] to prevent discrimination in the workplace is directly contrary to the purposes underlying Title VII.”)

The strong-basis-in-evidence standard, however, as barely described in general, and cavalierly applied in this case, makes voluntary compliance a hazardous venture.

As a result of today’s decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success—even for surviving a summary-judgment motion—are highly problematic. Concern about exposure to disparate-impact liability, however well grounded, is insufficient to insulate an employer from attack. Instead, the employer must make a “strong” showing that (1) its selection method was“not job related and consistent with business necessity,” or (2) that it refused to adopt “an equally valid, less-discriminatory alternative.” Ante, at 28. It is hard to see how these requirements differ from demanding that an employer establish “a provable, actual violation” against itself. Cf. ante, at 24. There is indeed a sharp conflict here, but it is not the false one the Court describes between Title VII’s core provisions. It is, instead, the discordance of the Court’s opinion with the voluntary compliance ideal. Cf. Wygant, 476 U. S., at 290 (O’Connor, J., concurring in part and concurring in judgment) (“The imposition of a requirement that public employers make findings that they have engaged in illegal discrimination before they [act] would severely undermine public employers’ incentive to meet voluntarily their civil rights obligations.”).

(Emphasis supplied.) As in Parents Involved, the extreme conservative, brazenly judicially activist Gang of 5 has made clear their own willingness to overturn actions by the elected representatives of the People to act to remedy centuries of discrimination.

The Congress can not let this brazen act of judicial activism stand. It must enact legislation overturning the Court's unprincipled decision in Ricci.

Speaking for me only

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  • Display: Sort:
    So who will guarantee that Congress acts? (none / 0) (#1)
    by andgarden on Mon Jun 29, 2009 at 10:57:11 AM EST
    Probably the Congressional Black Caucus. An excellent example of why descriptive representation is important.

    Too bad (1.00 / 1) (#2)
    by jbindc on Mon Jun 29, 2009 at 10:59:49 AM EST
    Charlie Rangel and four other members of the Black Caucus are being looked at for possible ethics violations.  Doesn't help the case if their credibility is shaky.

    I do not like this comment at all (5.00 / 2) (#3)
    by andgarden on Mon Jun 29, 2009 at 11:00:44 AM EST
    For obvious reasons.

    Their credibility on the Civil Rights laws? (none / 0) (#4)
    by Big Tent Democrat on Mon Jun 29, 2009 at 11:02:22 AM EST
    Really? Oooookaaay.

    No (none / 0) (#5)
    by jbindc on Mon Jun 29, 2009 at 11:03:54 AM EST
    It's called "politics" - you ever hear of it?

    Think that if an investigation goes deeper into these people, that anyone is going to want to listen to them, let alone align with them on what could be very contentious legislation?


    Yeah, it's not like there are any ethically (none / 0) (#7)
    by andgarden on Mon Jun 29, 2009 at 11:05:26 AM EST
    questionable white legislators.

    Not disagreeing (none / 0) (#9)
    by jbindc on Mon Jun 29, 2009 at 11:08:25 AM EST
    But it's an election cycle starting in September.  No one is going to take anything major up in the next year.  And then a few months of work will get done, and then we are back in a race for the WH.

    That's an entirely different point (none / 0) (#10)
    by andgarden on Mon Jun 29, 2009 at 11:09:06 AM EST
    Indeed, I take it as a walk-back.

    That would have nothing to do with (none / 0) (#11)
    by Big Tent Democrat on Mon Jun 29, 2009 at 11:10:36 AM EST
    your earlier comment.

    Why not? (none / 0) (#12)
    by jbindc on Mon Jun 29, 2009 at 11:14:54 AM EST
    My comment was that since 5 of them might be under possible ethics investigation, their case for going out and trying to get major legislation passed might be very difficult as no one will think they have any credibility, nor will anyone want to align themselves with these people.

    Perfectly consistent.


    I do not think so (none / 0) (#13)
    by Big Tent Democrat on Mon Jun 29, 2009 at 11:16:25 AM EST
    But have it your way. In either case, your first point is quite wrong imo.

    Well (none / 0) (#15)
    by jbindc on Mon Jun 29, 2009 at 11:18:57 AM EST
    You think Mark Sanford is going to be able lead on very many issues in SC, or push legislation?

    I just think nothing is going to happen on this front - at least by the Black Caucus.


    The CBC is much more than five (5.00 / 1) (#18)
    by inclusiveheart on Mon Jun 29, 2009 at 11:26:15 AM EST
    Congresscritters.  Not to mention the fact that there are other Congresscritters who care deeply about these issues who aren't members of the CBC.

    Silly comment (none / 0) (#16)
    by Big Tent Democrat on Mon Jun 29, 2009 at 11:24:50 AM EST
    Soorry, it was.

    If you represent Detroit or any other (none / 0) (#14)
    by inclusiveheart on Mon Jun 29, 2009 at 11:18:20 AM EST
    district that is heavily populated by minorities, the correct political calculation in an election year would be to go after this SCOTUS decision, not to run from it.  

    I have indeed (none / 0) (#8)
    by Big Tent Democrat on Mon Jun 29, 2009 at 11:05:45 AM EST
    Your attempt at playing it here is inept in my opinion.

    They're all corrupt, so the can't be trusted (none / 0) (#6)
    by andgarden on Mon Jun 29, 2009 at 11:04:41 AM EST
    Or so the "argument" seems to go. . .

    I haven't read the opinion yet (none / 0) (#17)
    by Maryb2004 on Mon Jun 29, 2009 at 11:25:53 AM EST
    but I agree that Congress should act.

    I doubt they will though.  I don't see, right now, the leadership to steer this issue past all the emotion.  

    Ledbetter. (none / 0) (#19)
    by oculus on Mon Jun 29, 2009 at 11:28:59 AM EST
    Ledbetter was different (none / 0) (#21)
    by Maryb2004 on Mon Jun 29, 2009 at 12:05:06 PM EST
    The emotion that was tied to Ledbetter pushed Congress in the right direction.  The emotions here are all over the chart.  

    Also, Ledbetter was a campaign issue so there was leadership on the issue.  


    Just got off a presser with Schumer (none / 0) (#20)
    by Big Tent Democrat on Mon Jun 29, 2009 at 11:48:30 AM EST
    He punted on the question.

    See my latest post.


    I agree with the ruling -shockah :0) (none / 0) (#22)
    by jedimom on Mon Jun 29, 2009 at 12:06:45 PM EST
    Scalia addressed the concerns of municipalities, to wit:

    UPDATE: Scalia's concurrence does go into that and suggests that the disparate impact provisions may be unconstitutional applied to public employers.

    Then (none / 0) (#23)
    by Big Tent Democrat on Mon Jun 29, 2009 at 12:08:00 PM EST
    on this issue, you are no progressive. Certainly your right.

    According to you then, Title VII is unconstitutional.


    We must await the "evil day." Don't (none / 0) (#24)
    by oculus on Mon Jun 29, 2009 at 09:28:56 PM EST
    jump the gun.

    LA Times (Savage) states today's Ricci decision is not a substantial change in the law.  No one else seems to agree with that conclusion, however.