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With Ricci Decision SCOTUS Majority "Legislated from the Bench"

Watch Conservative Joe stammer -- dumbfounded at the notion that the conservative SCOTUS majority "legislated from the bench"...

but that's exactly what they did.

They redefined the rules on the Civil Rights Act of 1964 Title VII "disparate treatment" provisions.

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Rating: 2.3/5 (6 votes cast)

Comments (9)


honestly, lee. i don't think there is a large enough sample here for you to claim disparate treatment.

additionally, the city went through a very rigorous process to ensure that the test was not racially biased. basically, the city had done everything right, and yet the black applicants did not pass the test.

here is an informal EEOC letter that discusses disparate impact

The interesting thing here is that the city threw out the test over the fear of a lawsuit, even tho they had the appropriate defense available to this kind of suit. in all likely-hood if a suite had been brought against the city, the city would have prevailed.

the white firefighters said, hey, you can't change your promotion policies because they don't get you the results you want unless there is an actual racial bias in the process. the SCOTUS agreed. i'm not sure how that is judicial activism.

Congratulations Lee, you're actually understanding the Constitution. It is well within the purview of the SCOTUS to review laws, as well as binding decisions made by government entities, as to their Constitutionality. The SCOTUS has the right to overturn any law or government decision that it finds to be in violation of the Constitution or Federal law. If the court overturns a law, then it is functioning de facto as a legislative body, effectively "legislating" from the bench. It happens all the time.

The Ricci case is a perfect example of the SCOTUS functioning within its duties -- it examined a decision made by a government entity and found that it violated the Civil Rights Act of 1964, specifically "disparate treatments" based on race.

Perhaps conservatives need to come up with better nomenclature that "legislating from the bench," because the focus of the conservative argument has always been toward dummied-up cases that are taken to court specifically with the intention of using a Federal judicial ruling to overturn existing state laws -- exactly the opposite of cases like Ricci that arise from legitimate grievances.

The most famous of these dummied-up cases is of course Roe v. Wade. In the early 1970's, a group of attorneys working with Planned Parenthood conspired to file a series of lawsuits designed to challenge Texas abortion laws. These lawsuits were based on a set of scripted "hard luck" stories, and were developed specifically for use within the appellate court system. They went shopping for a group of "victims" and found Norma McCorvey ("Jane Roe"), a woman who claimed to be pregnant as the result of rape, Dr. James Hallford, a physician who wanted to perform "safe and legal" abortions, and John and Mary Doe, a married couple who could not take contraceptives due to health risks. The Hallford and Doe cases were dismissed for lack of merit, but the Roe case was appealed to the SCOTUS, which eventually sided with Roe and effectively overturned abortion restrictions in all 50 states.

The purpose of Roe v. Wade was to circumvent state's rights and the legislative process and overturn the law of all 50 sovereign states by a single ruling from the highest Federal court of appeals. As a result of this tactic -- and the fact that citizens were stripped of their right to debate the issue or have it debated by elected representatives who could be held responsible for their decisions -- abortion remains an open wound in the American culture.

That is why conservatives oppose that kind of underhanded judicial tactic. It's really not hard to understand if you just think about it.


No, no, no. Such claims for disparate treatment do not apply for directly job-related tests under Title VII. The city was in violation of a federal statute, and they were properly found against.

Mac Lorry:

I actually took the time to read the decision. The fundamental problem is that the law is self-contradictory. The city was relying on the "disparate impact" clause solely on the grounds that no blacks qualified for advancement, and thus, assumed the test was racially biased. The majority decision pointed out that the fact that no blacks qualified is not sufficient in itself to throw out the test and impose a race based solution.

In fact, the test and the administration of the test were painstakingly and scientifically designed to eliminate racial bias. Had the decision gone the other way it would have invalidated the use of written tests for any form of advancement or qualification. It would have been an admission that blacks, as a group, do poorer on written tests than whites. Thank God there were only four justices on the court who didn't see or care about such ramifications.


lee, still waiting for you to show us the evidence of the flawed, biased test. It's not in the decision.

Lee Ward:

It's referenced in the decision.


No it's not lee. there is no evidence anywhere that shows the bias of the test. just mentions of it and those mentions come based only on the results. you can't just claim out of hand that a test is racially biased because you expected different results. Where is the evidence lee?


Actually, it is not referenced in the decision, that is why Lee hasn't linked to it. The case that Ginsburg lays out as to what 'makes' it a biased test isn't what is in the test, it the results. No where in the decision is a single question pointed out as being 'biased', or that the test itself is 'biased'. There were items such as, we feel that a different type of test would be better, or more oral than written questions would have been better, but nothing that specifically shows that anything in the test itself was biased.


"...dumbfounded at the notion that the conservative SCOTUS majority "legislated from the bench...""

Lee, damned right 'dumbfounded'. Because the idea is so damned ridiculous. At least to anyone who understands the issues that were involved.


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