Justice Kennedy’s opinion in Ricci will inevitably be put under the microscope for what it tells us about the Justices’ views of how the Second Circuit panel that included Judge Sotomayor handled the case. The Justices themselves were certainly aware of the political context of Ricci in the days running up to the confirmation hearings.

I am struck by the extent to which the majority opinion largely treats the court of appeals’ ruling as a non-event. To the contrary, Justice Kennedy almost seemingly goes out of his way not to criticize the decision below, notwithstanding that the Supreme Court takes a dramatically different view of the legal question. The Court indicates that the state of the law before today’s ruling was “a difficult inquiry,” and that its “holding today clarifies how Title VII applies.” It rejects the plaintiffs’ outright attack on the Second Circuit’s decision as “overly simplistic and too restrictive.”

Justice Ginsburg’s dissent in passing takes the view that the panel’s opinion followed prior Second Circuit precedent. Then the dissenters (in a footnote noted by Jonathan Adler that cites the district court’s discussion of existing Second Circuit precedent) elect not to remand — which would have made the reversal 9-0 — and instead explain why the city should prevail, albeit on a slightly different ground. But they avoid making their disagreement with the court of appeals particularly explicit (the difference is the thin one between whether the city reasonably believed it would be engaging in disparate impact discrimination and whether a court would agree with that belief), and they clearly agree with the bottom line of the Second Circuit, though they disagree with the standard seemingly set by prior Second Circuit precedent.

By contrast, Judge Alito’s concurring opinion comes much closer to an overt criticism of the rulings of the district court and court of appeals. I found it notable that the Chief Justice – who seems to place a priority on not interjecting the Court into political disputes unnecessarily – does not join the concurrence.

In the end, it seems to me that the Supreme Court’s decision in Ricci is an outright rejection of the lower courts’ analysis of the case, including by Judge Sotomayor. But on the other hand, the Court recognizes that the issue was unsettled. The fact that the Court’s four more liberal members would affirm the Second Circuit shows that Judge Sotomayor’s views were far from outlandish and put her in line with Judge Souter, who she will replace.

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