I wish there were more civil litigators on the US Supreme Court...
The Supreme Court gets so damned political that it can drive a civil litigator crazy. Take the Ricci case. In this case handed down today, the five member majority held that the 17 white and 1 Hispanic firefighters were entitled to partial summary judgment on the claim that the City had acted without a proper motivation in throwing out an exam that resulted in less minorities passing as a percentage than the white folks who took the exam.
Summary judgment is a hearing or proceeding where a court must find there can be no reasonable dispute about a set of material facts that underlie a legal conclusion (See Federal Rules of Civil Procedure Rule 56). Sorry, my non-favorite five, but you are all wet. There are significant disputes over facts here that would have justified denial of the motion for partial summary judgment.
Just read the first section of the majority opinion, and then read the first section of the Ginsburg dissent (not to mention the fight over facts between Alito in his concurring opinion, where he really shows he has no clue about how to weigh competing facts in a summary judgment proceeding, and Ginsburg's end-of-dissenting-opinion reposite). In her main dissent, Ginsburg points out two significant facts: (1) other cities or municipalities had given more weight to local factors and oral exams than written exams and saw significant increases in minority scores where previous tests had seen poor minority test-taking results and (2) there was clear evidence that minorities more often had trouble getting books on time, or having enough money to buy all the books necessary to adequately study for the exam. That alone should justify the City's decision that it was entitled to a trial on the merits as to whether it's actions were reasonable. After all, that is the question for summary judgment--and these justices know better. It's just they are all fired up (pardon the pun) about civil rights laws in general...and they now have a decision that district court judges will likely ignore when people cite that case as precedent on civil procedure rules for summary judgment.
As to the facts in the Ricci case, I'll be the first to admit that oral exams may create more subjectivity in testing, and that at some point, not having the bucks to get the textbooks for a lieutenants' or captains' exam is close to a whine. But there is certainly a question of fact for a jury to decide as to whether the City was motivated by irrational and discriminatory impulses. By the way, I didn't see such solicitiousness by the non-favorite five with minority or women plaintiffs in these sorts of civil rights cases. Why the sudden reversal of sensibility when mostly white guys are involved? Sorry for that snark, but it is staring us in the face here.
Related to the above, Justice Ginsburg is correct to say that if the 5 man majority of Justices want to limit what I would personally agree with them was too loose a standard on the "disparate impact" test, common sense jurisprudence required that they remand the case to the trial (district) court for further evidence-taking and hearings under the modified standard they were enunciating. In other words, vacate the trial court's denial of summary judgment, but don't do what the five man majority did, which was summarily enter an Order granting the summary judgment and deny the City a right to defend its intent in open court.
Finaly, where is the traditional conservatives' concern or deference to decisions of local governments? It is like the Supreme Court majority of five acted like Justice Brennan in reverse and allowed an individual (or small group of individuals) to overturn a decision of an entire City. What is less surprising, unfortunately, is that the majority fails to mention let alone understand what any historian of the City of New Haven can tell you, which is that the City has a history of racial tension, and that the City was trying to avoid dragging that history through the courts if it had not rejected the firefighter's test. That's what made the City's decision, in light of the facts Ginsburg identified, rather cautious...or should I say "conservative"?
I'd say the non-favorite five failed Civil Procedure 102 (not 101) today.