Instead of rejoicing over the outcome of the Ricci case, the fact that four justices signed on to GInsubrg’s dissenting opinion fills me with both anger at liberals and dread that the liberal viewpoint will eventually triumph over reason and sensibility. Ginsburg writes, “The Court’s order and opinion, I anticipate, will not have staying power.” I translate this as meaning that Obama is going to be president for another seven and a half years, so the liberals are only one heart attack away from reversing Ricci and imposing their will. It’s an unusually unsportsmanlike statement and demonstrates a disrespect for stare decisis that’s unbecoming of a Supreme Court justice. When something like that shows up in a dissent, it indicates that the decision created a great deal of ill will.
As I explained in my previous two posts analyzing the Ricci decision, the statutes passed by Congress are racially neutral and state that it’s unlawful “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 USC §2000e–2(a)(1). It doesn’t say that it’s only unlawful to discriminate against minority races. The Supreme Court has continuously paid at least lip service to the concept of race neutrality, and theoretically there are only a few limited circumstances in which it’s legal to discriminate against whites in order to favor minority races. One such circumstance is in education where the need for “diversity” is such a compelling interest that it allows colleges to consider race as a factor in admissions See Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
It seems clear to me that Ginsburg doesn’t agree with the idea of race neutrality. She believes that it’s always desirable to discriminate against whites, and presumably Asians as well, in order to benefit blacks and presumably Hispanics. But she dare not say this directly in her opinion, because such a direct statement of what the left really wants is unpopular with the majority of Americans, and it would also make her dissent irrelevant because it would be such an obvious misstatement of the current law, a misstatement of both the text of the statutes and judicial opinions interpreting the statutes. Her actual dissent is a lot more pernicious, because it undermines the holding of the majority by repeating and thus bolstering the standard liberal half-truths and lies.
If you don’t believe my view of Ginsburg’s true motives, then try to imagine how she might have decided this case if the facts were the same except the races were reversed. After the city gave the test, too many blacks did well on the test, and white groups in the city complained that too many blacks were being promoted, and then the city threw out the results under the pretext of disparate impact. Does anyone seriously think that Ginsburg would agree with the city? Hell no! It would be an obvious case of discrimination against blacks!
At the beginning of her dissent, Ginsburg mentions that the city is nearly 60% “African-American” and Hispanic. She thinks this bolsters the view that the fire department needs more black and Hispanic firefighters in command position. This is only because she judges fairness by outcomes. From my perspective, the fact that non-Hispanic whites are a minority in the city of New Haven makes it more likely that the city refused to certify the test results for the worst possible reason; to discriminate against a minority (non-Hispanic whites) in order to benefit the majority.
The right wing:
Chief Justice Roberts is 54. He may have epilepsy, though.
Alito is 59.
Scalia is 73.
Thomas is 61.
Kennedy is 72.
Average age is 65.
The left wing:
Breyer is 70.
Ginsburg is 76 and was operated on in February for pancreatic cancer. It's really rather heroic that she (or her clerks) came up with the dissenting opinion at all, and its quality should be mercifully evaluated in light of that.
John Paul Stevens is 89. It's basically a scandal that somebody is on the Supreme Court at age 89. The press didn't complain about it during the Bush years for obvious reasons.
David Souter, the original Stealth Nominee, is only 69, but is apparently so out of it that he's packing it in.
Average age 77 (rounding down).
Basically, the liberal team on the Supreme Court consists of one very smart guy just entering his 70s and a very motley supporting crew. I wonder why Breyer didn't write the dissenting opinion. Perhaps he just couldn't bring himself to be as obtuse and mendacious as it took to get the job done.
Souter will be replaced by 55-year-old diabetic Sonia Sotomayor, who is hard working and will be a reliable vote for the left, but who isn't likely to be the second coming of William Brennan in terms of persuading the other Justices to move to the left through Machiavellian manipulation. Sotomayor got the nomination because Obama, in effect, drew a Venn Diagram consisting of circles labeled "Hispanic," "female," "not old," "liberal," and "credentialed enough to be plausible," and Sotomayor was the last one standing.
So, you can expect pressure to build on Stevens from the media and the Obama Administration (not that there's much distinction between the two these days) to get the hell out, no later than his 90th birthday next April.
Look for Obama not to draw a Venn diagram next time and waste another pick, but to find somebody who will be highly effective.