What this means is that the appeals court ruled against Ricci because it recognized that New Haven had tried to avoid a lawsuit that would have been possible and likely successful because of current law. In other words, the city tried to avoid falling afoul of the law, and the court did not penalize it for doing so. What is to blame in all of this is the law, rather than the judges who seem to have done what they were supposed to do. Indeed, what some people seem to have wanted to see Sotomayor do is to punish New Haven for trying to stay within the limits of the law, and for failing to do so she is declared to be an enemy of the rule of law. I submit that this doesn’t make a lot of sense.
Perhaps I have missed something, but the injustice done to Ricci seems in no small part to be a product of the law as it exists. However, under current law, even granting that the city of New Haven seems to have bungled the handling of the promotion test for its firefighters, it does not necessarily follow that throwing out the test results from the apparently flawed test was a violation of anyone’s legal rights. Presumably had Sotomayor found for the plaintiff, we would now be hearing about how all that infamous “empathy” caused her to side with the dyslexic man against a municipality–oh, the judicial activism!–and to open the latter up to long and costly litigation (which would, of course, demonstrate her abiding love of greedy trial lawyers, her desire to enrich fellow minorities and her hatred of patriotic firefighters, as so many people would be only too happy to tell us).
It’s nice to see an actual analysis of the decision, instead of the Villagers clucking “affirmative action bad, extreme decision, Ricci reminds me of my cranky uncle”, etc.
I think Larison would have been a good pick for the NYT opinion gig that Douthat got. In a few days, we’ll see what Douthat comes up with on this topic.
Update. I see John already wrote about this a few days ago, which I thought I dimly remembered, but couldn’t find “Larison” in a search (I should have tried “Eunomia” as well).