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Right-Wingers Portray 5-4 SCOTUS Ricci Decision as 9-0 Against Sotomayor

Somehow, the 5-4 ruling from the Supreme Court earlier today in Ricci v. DeStefano has been turned into a 9-0 ruling against Supreme Court nominee Sonia Sotomayor, according to some conservative critics.

“NOT EVEN ONE JUSTICE APPROVED SOTOMAYER IN RICCI CASE,” blares the headline of a statement from Wendy Long, counsel to the Judicial Confirmation Network, on the Supreme Court’s decision.

“Frank Ricci finally got his day in court, despite the judging of Sonia Sotomayor, which all nine Justices of U.S. Supreme Court have now confirmed was in error,” she writes.

Huh? Today’s ruling, as I noted before, was 5-4. Five justices voted to require the city to present more evidence — what the Supreme Court calls “a strong basis in evidence” — that if the city had not thrown out the results of a promotional exam that had a disparate impact on minorities, then it would have been legally liable to any racial minorities denied promotions who sued under the civil rights law.

Setting aside, for a moment, whether that evidentiary burden makes sense, there’s no question that only five of the nine justices supported it. The other four were just fine with the law the way it was, and believed that the city had presented sufficient evidence to satisfy its decision.

Justice Ruth Bader Ginsburg, writing for the four justices in dissent, questioned the court’s “newly announced strong-basis-in-evidence” standard and recites in painstaking detail the evidence supporting the city’s decision. She went on to note that since the majority is announcing “a new legal rule,” then it should remand the case to allow the lower courts to apply it, since they didn’t have notice before that that’s what the rule was. “[T]he ordinary course is to remand and allow the lower courts to apply the rule in the first instance,” she wrote, chastising the majority for not following that usual course and instead deciding against the city of New Haven.

Within hours after the decision, conservatives had turned this notion that the majority should have remanded the case if it was going to decide a new legal rule into the idea that the four dissenting justices had repudiated Sotomayor and the reasoning of the Second Circuit panel on which she sat.

“This was a unanimous decision that the 2nd circuit was incorrect,” said Gail Heriot, a professor at the University of San Diego School of Law on a conference call organized by the Federalist Society this morning. “Nobody agreed with Sotomayor. Nobody.”

As Long continues in her release:

“Usually, poor performance in any profession is not rewarded with the highest job offer in the entire profession.

“What Judge Sotomayor did in Ricci was the equivalent of a pilot error resulting in a bad plane crash. And now the pilot is being offered to fly Air Force One.

Well, that’s not how Justice Ginsburg and her co-dissenters see it, as they made clear in this passage:

Applying what I view as the proper standard to the record thus far made, I would hold that New Haven had ample cause to believe its selection process was flawed and not justified by business necessity. Judged by that standard, petitioners have not shown that New Haven’s failure to certify the exam results violated Title VII’s disparate-treatment provision.

UPDATE: Sen. John Cornyn (R-Texas) has weighed in with his view of today’s Supreme Court decision in the *Ricci *case, and — suprise! — he reads the 5-4 decision as a 9-0 against Sotomayor, just like Wendy Long and the Federalist Society lawyers do:

Today’s decision is a victory for evenhanded application of the law. Saying the earlier decision was “antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,” the Supreme Court saw the case for what it is: a “race-based decision” that violates federal law. And while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed. [Emphasis added.]

*You can follow TWI on Twitter and Facebook. *

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