Thanks to the recent U.S. Supreme Court ruling that abruptly changed the rules for enforcing the Civil Rights Act's Title VII, which bars racial discrimination in employment, you are welcome raise an eyebrow the next time you hear the standard conservative grumble about activist judges, always assumed to be an exclusively liberal trait.
The ruling was a model of judicial activism.
The court's five-member conservative majority ruled in favor of the white firefighters of New Haven, Conn., who sued when the city scrapped a test that had failed to qualify a single black or Hispanic firefighter for potential promotion, in the process stymieing whites who had passed.
The decision raised cheers in the quarters that would disallow any race-conscious effort to ameliorate the socially calamitous consequences of hundreds of years of race-conscious suppression and discrimination.
Because the ruling incidentally overturned one by Judge Sonia Sotomayor, it has especially delighted opponents of her nomination to the high court. Here, they proclaim, is proof Sotomayor has no business on the Supreme Court. But how can that be, when the charge against her has been lurking radicalism?
The radicals here were not the two jurists on the three-judge panel of the Second Circuit Court of Appeals, one of them Sotomayor, who voted to sustain a district court decision that had approved New Haven's action. The judges plucking new law out of thin air were the five of the Supreme Court majority.
It has been Supreme Court precedent since a unanimous 1971 ruling that, even absent any proof of discriminatory intent, acts and practices that are discriminatory in their operation offended the law. Congress later pointedly added that principle to the Civil Rights Act and the rule of thumb has been that an 80 percent failure rate by any minority on an employment test amounts to a violation.
After reviewing the appellate panel's ruling, the full Second Circuit court declined to intervene, in effect supporting the panel's ruling, and small wonder. The Second Circuit has specific case law of its own nailing down the precedent that Sotomayor followed.
Sotomayor, then, did just as conservatives typically argue jurists must. She followed well-settled precedent, respected legislative action and chose not to use the firefighters' case to change law.
Least of all did she crash ahead and attempt to misuse the case to raze every joist and stud of affirmative action, as many conservatives have criticized her for not doing. As it turns out, even the court's conservative majority pulled up short of that, limiting its ruling to a technical element of the case.
The majority did, however, indulge itself it language suggesting it might be itching for a case that would let it collapse affirmative action altogether, as it has hinted that it may be poised to undo the Voting Rights Act and scrap or severely degrade the rule, established in 1914, that bars illegally gained evidence from being used in criminal trials.
The Roberts court has not gone over into retrograde hyperdrive, but it is revving its activist engine.
Tom Teepen is a columnist for Cox Newspapers. He is based in Atlanta. E-mail: teepencolumn(at)earthlink.net.
