Your Lying Eyes

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29 June 2009

My Ricci Prediction

Today is supposedly the day the Supreme Court will hand down its decision in the firefighter reverse discrimination case, Ricci v DeStefano. Steve Sailer is asking for predictions - I posted mine, which was as follows:
I'm going out on a limb and predict 7-2 to overturn. Souter and Breyer will concur on remanding, basically to determine if there is sufficient evidence in favor of the test's objectivity to require a trial. Scalia, Thomas, Alito and Roberts will concur, but vote to overturn the "disparate impact" rule altogether. Kennedy's concurring opinion will be the prevailing one, which will argue for a convoluted set of standards as to when and how disparate impact tests should and should not preempt any other considerations, which rules will somehow clearly favor Ricci et al but somehow not too clearly favor anyone else.

The NYT will then point out how this opinion only buttresses Sotomayor's "mainstream" credentials and further demonstrates her thoughtful and reserved jurisprudence.
The likely fatal flaw in my prediction is that I am basing it on the oral arguments, which showed some serious discomfort with New Haven's actions even among Breyer and Souter. Since to get around this mild discomfort all they need to do is send it back to the appeals court with instructions to look further into the issue of whether New Haven should have gone to trial, I expect they'll do that. A 7-2 decision will be a strong rebuke of Sonia Sotomayor's pro forma rejection of the firefighters' claims, and that will give Republicans a little more maneuvering room, but not much else.

But I was shocked by the school stip-search decision, since in oral arguments there seemed little sympathy for the plaintiffs argument (if not her plight) but it went 8-1 in her favor, so I'm not too confident in this prediction. But perhaps the conservatives going along with the moderate liberals on that one is a sign of some compromise going the other way on Ricci. We shall soon see.


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