TheLoop21.com

By: Marvin King (Add to your loop)
Tue, 06/30/2009 - 09:16

The decision shows conservatives, not liberals like Sonia Sotomayor, as activists.

We have seen this sorry act before. A conservative Supreme Court, purportedly upholding the law in the manner the framers of the Constitution or the authors of congressional legislation intended, actually does anything but uphold the law. In this instance, I refer to Ricci v. DeStefano, in which the Supreme Court ruled in favor of white firefighters who claimed discrimination because they were not promoted after passing a test that no black firefighters passed.

The test at the heart of this case showed one thing: black firefighters in New Haven, Conn., who took this exam for promotion are not as good at test taking as white firefighters (why that is should be the topic of another column). This test had no connection to determining who makes the best firefighter. This test had no relevance to actual job performance or competence.

It is similar to college admissions. We should not rely solely on test scores to determine who the best college students will be. Admissions counselors around the country will tell you the best system is to take a full measure of the student: which activities they are in, whether they are leaders, whether they are meaningfully engaged in the community, their family background; in other words, the story of their life. Relying strictly on standardized tests is the worst way to get the best student body.

Besides demonstrating an unreasonable reliance on standardized tests, this case also exposes conservative activism. Conservatives often rail liberal Supreme Court justices as "activists" who "legislate" from the bench. Activist judges, according to the conservatives, rule in a manner that is inconsistent with legislative intent.

In yesterday's decision, however, the Supreme Court's conservative majority provided example #1 in rank hypocrisy. In 1971's Griggs v. Duke Power, the Supreme Court ruled that Title VII of the 1964 Civil Rights Act forbids tests that have no relevance to the job at hand when it leads to a disparate impact. This is when a device for employment has the effect of discrimination against racial minorities and that test has no reasonable relation to the actual job. Congress passed the 1991 Civil Rights Act in part to firm up that decision. Essentially, yesterday's decision in the firefighters' case went against 45 years of legislative and judicial precedent. 

The real problem is conservative judges looking for an opportunity to protect white firefighters from discrimination, even though by so doing they distorted the true meaning and intent of the Civil Rights Act.

Commentators have breathlessly waxed poetic about what the decision means to Sonia Sotamayor's chances of being a successful nominee to the Supreme Court. It means nothing. Republican senators will huff and puff, but they are all bark, no bite. As an appellate judge, Sotomayor adjudicated this decision in a reasoned, measured manner.