Supreme Court's Ricci Decision - Half A Loaf (Updated)

I just scanned the Supreme Court's decision in Ricci v. DeStafano, holding 5-4 for the firefighters. That was the case brought by 11 New Haven Connecticut firefighters who had all achieved top scores on a promotion test. The City threw out the test results because no blacks were among their number. The firefighters argued that this act was unlawful under Title VII and that it was unlawful under the Equal Protection Clause of the Constitution.

Unfortunately, the Court's decision was limited in scope. Instead of deciding the penultimate issue - that the Equal Protection clause means that all discrimination, including reverse discrimination, is unlawful - the Supreme Court opted to limit its holding to Title VII. The decision changes the law of Title VII disparite impact claims - i.e., claims established based on a purely statitstical analysis of whether a hiring criteria resulted in too few of whatever minority or gender were hired as a result. If my initial read is correct, the holdings effect is ultimately to lessen the evidentiary value of such statistical claims as proof of racism.

While the outcome of the case is good, and it certainly points in the direction of an ultimate holding that the Equal Protection clause means what it says, the fact is that four liberal justices would have held otherwise. We are but one activist justice away from an Obama Supreme Court given the racially tinged green light to reverse racism.

Much more on this after I have a chance to pull it apart.

Update: Heh. I missed this. Johnathan Adler at The Volokh Conspiracy points out that Justice Alito, in his concurring opinion, had a terse rebuke of the "empathy standard":

There's also some interesting language at the close of Justice Alito's concurrence (joined by Justices Thomas and Scalia) that I read as a subtle rebuke to Judge Sotomayor and the Second Circuit panel (which expressed sympathy to the firefighters in its per curiam opinion), as well as a rejection of an "empathy" standard for judicial decision-making.

. . . The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.