Ricci And The Roberts Court

Prior to the Court’s 5-4 decision in Ricci, many pundits suggested that a reversal of the Appellate Court’s decision would amount to a rebuke on the legal reasoning of Judge Sotomayor since she was one of the judges in the en banc opinion.  Once the decision was handed down reversing the Court of Appeals, critics of the nominee quickly opined that the reversal was evidence of Judge Sotomayor’s “judicial activism” and have urged renewed efforts to block her confirmation.

What the critics and pundits miss is that the Ricci decision was not as much a reversal of Judge Sotomayor as a reflection of the Court’s steady march to the right under Chief Justice Roberts.  Under his direction the Court has taken deliberate efforts to undo many of the Warren Court protections.  These efforts have been exacting and precise and are a reminder that on significant areas of employment law, states rights, criminal procedure, and executive authority we are in fact merely one decision away from fundamentally changing the face of domestic policy.

Both Northwest Austin Municipality District and Ricci are excellent examples of what to expect from the Roberts Court in the future, and the Ricci decision in particular highlights the flaws in the critiques of Judge Sotomayor.  Each decision takes a good hard whack at existing legal precedent, but not by unilaterally removing a significant section of federal legislation (as is N.A.M.D.), or by fundamentally altering the analytical framework informing employment discrimination litigation (as in Ricci).  Rather, each decision details exactly what kind of case advocates from the right need to produce so that the Court may meet their given political and policy goals.  In the case of Ricci, the en banc decision merely applied current precedent.  It was under Roberts’ lead that the Court created new precedent.  To that end, Judge Sotomayor was not reversed as much as the analytical framework upon which she relied totally rewritten.  

Given that Judge Sotomayor will be confirmed, and given that she is replacing Justice Souter, a reliable vote for the minority-left of the Court, there is very little that can be done to stem this march to the right.  However, that does not mean that we cannot or should not have a real conversation about just what “judicial activism” means and the impact the Roberts Court has had on our democratic ideals.

photo courtesy of jbking via Flickr.


Jeffrey W.
Jeffrey W8 years ago

I see Jessica Pieklo is up to her old obfuscations again. Not one of the dissenting opinions supported Sotomeyers reasoning - each supported the decision based on reasons quite different from Sotomeyers - exposing her as inept.

Stan S.
Stan S8 years ago

The Sotomayor nomination is bringing to a head an issue that is sorely in need of being brought to a head. That is this business of 'activist judges' - judges making their decisions based purely on their personal socio-political proclivities, rather than on the meaning and intent of the law. This is just plain dangerous business, and why the left can't see that, I don't know. Once you make the law purely relative - whether to life experience or race or gender or whatever - that is a weapon that can cut both ways. The left may think it can control the educational process of the nation's law schools, and so come up with its desired result. But that is a foolish notion, up against the power of the corporate-media-government complex. The nation is being set up for disaster, in this rush to 'experience' judgment. Either we return to the rule of law, or we move into anarchy. If the left wants the law to change on 'its' issues, then it needs to change the law the correct way: via the legislative branch. Or there will be hell to pay. Sotomayor embodies the idea of changing the law by judicial fiat. That way must be stopped. Or we lose the Constitution. And those consequences are too shuddering to contemplate. A declaration of martial law and a corporatist takeover of America, anyone? I thought not. Wake up, folks. The end does not justify the means. There lie dragons.

Roger H.
.8 years ago

The person that wrote this article needs to do a lot more research and open her mind to the reason the Supreme Court ruled the way it did in this case. The court found after experts testified that the test given to the firefighters was racially neutral and that by denying the firefighters that filled all the requirements a chance to be promoted was a form of reverse descrimination, no matter what their race. This was not a political decision. It was common sense rule of law. The city, by trying to be "politically correct" denied the firefighters their civil rights and the Appellate court was totally wrong to rule against them, whether they were white, black, green or orange.

Michael S. S.
Michael S. S8 years ago

I think that the court in the Ricca case was correct even though I support Sotomayor for the S Court I think she was wrong in that

Bob C.
Bob C8 years ago

Using your logic, the four members of SCOTUS who voted in the minority in Roe v Wade (5-4) are just as correct about a woman's right to have an abortion as Sotomayer is right about the white firefighters in the Ricca case (5-4) not being discriminated against.