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Pre-Emptive Ricci Post


I will be in a car returning from a graduation party most of the day. So if, as expected, the Court hands down its decision in Ricci today and reverses the Second Circuit, let me say that this in no way shows that Sotomayor was “wrong” on the law. First, because the Supreme Court can create new law in way that Circuit Courts can’t. And, second, because cases interesting enough to make it to the Supreme Court generally admit to multiple reasonable interpretations, and New Haven’s belief that civil rights law did not allow it to use a test that would disproportionately promote white people unless it could show a much stronger relationship between the test and job performance was certainly plausible, and a legal position that obtains 3 or 4 Supreme Court votes in particular cannot usefully be said to be “wrong.”

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