|  The timing of this one is interesting in that it overturns a ruling by a nomiinee for the high court itself. Here's a short clip about the ruling from Fox News politics online, and how Sonia Sotomayor's Court of Appeals decision was overturned.
For us here in Michigan - particularly supporters of and participants in the Michigan Civil Rights Initiative (MCRI) - the ruling is also a bittersweet vindication. I've quickly read the raw text of the 5-4 decision (Ricci v. DeStefano 530 F.3d 87 (2008)), found here, Justice Ginsburg begins her dissent with a tired repetition of Grutter, and one of its worst moments. First words Ginsburg puts on paper: In assessing claims of race discrimination, “[c]ontext matters.” Grutter v. Bollinger, 539 U. S. 306, 327 (2003).
Ah. Right out in the open now. So the Constitution is a flimsy guide where "context matters," (context in this light is if you're white, you are assumed to not have the "history of being discriminated against") at least regarding the 14th Amendment. This is a core dispute though between modern conservative Constitutional doctrine and modern liberal doctrine. The "living, breathing Constitution" versus one where the original words have relatively defined meanings and should be given ordinary construction. Ginsburg goes on to predict the majority ruling will not "have staying power." Certainly, in her view of history, almost nothing should have staying, let alone can, if indeed, "context matters." If Ginsburg is right, the 14th Amendment to, and the entire Constitution itself, are the things that won't have "staying power." The majority decision is written by Justice Kennedy, and while that might leave room for concern, it indicates where he is now in the mix of the court. It should be noted that Kennedy's dispassionate ruling against disparate-treatment of any kind focuses on detailed analysis of arcane nuances of the Civil Rights Act, and hence is not a master key into proper construction of the 14th amendment or Equal Protection Clause theory. But it is a key for preference opponents into a backdoor (some observers thought the Center for Individual Rights (CIR) should or could have litigated the U-M cases using either state law or Civil Rights Act law, but had they done that they would not have had a shot at the key for the obvious ... front door equal protection analysis) to ensure equality, and it closes a circle of argument by preference supporters that the Civil Rights Act forced preferences somehow. Ricci is therefore a major step forward for the anti-preference movement, but it is not nearly as a big a step backward as represented by Grutter. The only saving grace of Grutter is that it contained enough other language and a type of analysis that sows its own seeds of destruction in the future. The preference v. non-preference has become a long, ongoing battle in legal and social history, one which will continue many years, in many chapters, and on many fields of political and legal contest. Ward Connerly, pictured above, is right to see it as a battle that can't be won without political and social force. The success in 2006 in Michigan may have contributed to the outcome in Ricci in subtle ways, although we must all be careful and vigilant to guard and expand upon the equality movement in the future. |
