Supreme Court: Firefighters Decision, and Madoff Sentencing

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Stephen Vladeck
Constitutional Law Professor, American University Washington College of Law
Monday, June 29, 2009; 12:15 PM

The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

And, Bernard Madoff was sentenced Monday morning to 150 years for conducting Wall Street's biggest Ponzi scheme, whose victims numbered in the thousands and spanned the globe.

Stephen Vladeck, constitutional law professor at American University Washington College of Law, was online Monday, June 29 at 12:15 p.m. ET to discuss today's Supreme Court ruling which could alter employment practices nationwide, plus the sentencing of Bernard Madoff.

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Stephen Vladeck: Hi everyone -- I'm Steve Vladeck, a constitutional law professor at American University here in D.C. My thanks to the folks from the Washington Post for inviting me to participate in today's live chat, and to all of you for submitting questions. In the next hour, I hope to discuss in some detail today's Supreme Court decision in the case of the New Haven firefighters, and the breaking news that a federal judge in Manhattan has sentenced Bernie Madoff to 150 years in prison -- the maximum sentence he could have received.

I look forward to your questions!

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Laurel, Md.: The article on the firefighter decision is either a little vague or over my head. Is the issue essentially: if an employment criterion (i.e. the test in question) has disparate racial impact, and it cannot be established whether the test has a racial bias or not, then it cannot be assumed to be biased solely because of the results.

Is that the issue, do I not get it, or is this the "cursory approach to unsettled questions" that Judge Cabranes criticized?

Stephen Vladeck: The whole case is actually a bit more technical than one would think based on the media coverage. The real problem is that the case presents an internal conflict within Title VII -- the federal law prohibiting various forms of workplace discrimination. On the one hand, employers are not supposed to adopt measures that produce a disparate impact (like the test New Haven used here). On the other, they're not supposed to discriminate on the basis of race (which New Haven did by rejecting the test). So it's a bit of a Catch-22 for local governments. What the Court held today is that, without a showing that the test really is more racially biased, local governments can't simply throw them out when doing so produces a race-based effect all its own.

As Justice Scalia notes in his concurrence, the real constitutional battle implicated by this case will come another day...

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Philadelphia, Pa.: Judge Sotomayor was in the majority opinion in the New Haven case that was just reversed by the SCOTUS. She and her colleague also sided with the city of New Haven. Why are Republicans up in arms? Aren't they being disingenuous? They usually like the whole states rights (or in this case city rights), right? Except for Bush v. Gore, of course!

Stephen Vladeck: To be honest, I think that those who would oppose Judge Sotomayor's confirmation have struggled to find obviously controversial decisions she has written in her tenure as both a district and circuit judge, and this is, to them, one of the best candidates.

But given that the majority in today's decision itself seems to recognize the "newness" of the holding (undermining the argument that the lower court clearly erred), I have a hard time seeing how Sotomayor's involvement in the lower courts is going to do anything other than provide the fodder for a few soundbytes...

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Bowie, Md.: What's the difference between sentencing Madoff to 150 years or 50 years? Like if he's 91 and failing, he won't be let out to die at home?

Stephen Vladeck: It's a fair question, but sentencing law is not just about the actual time served by the defendant; it's also about the message that the sentence sends about the wrongfulness of the defendant's conduct -- it's deterrent effect, if you will. Giving Madoff the maximum sentence available, whatever it happened to be, was a pretty powerful statement by Judge Chin that there are simply no mitigating circumstances in his case...

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Philly: Now that the Conn Firefighter decision has been handed down - will this effect Sotomayor's nomination. Also -- why did her court issue such a small explanation of their decision?

Stephen Vladeck: As I briefly mentioned in one of my earlier responses, I doubt that the decision today will materially affect Judge Sotomayor's nomination. I'm sure some will try to use it to argue that she's outside the mainstream, but this case raised an interwoven series of relatively complex questions. It strikes me as unlikely that any contemporary nominee is going to get in that much trouble over a case on which so many reasonable people could disagree...

As for the means by which the Court of Appeals decided the case, it's incredibly difficult to say without knowing more inside info. It could be that they really did think the result was ordained by precedent; it could be that they were all overloaded and took the short way out; it could be more pernicious. We just don't know. But this kind of thing (where the lower federal courts resolve weighty cases in cursory opinions) actually happens all the time. That's not to approve of it (I, for one, despise the practice), but it's to suggest that this wasn't that unusual, here...

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West Chester: The Conn Case -- So the test was valid -- no minorities or not enough passed and so the local government tossed the test. Why? I mean whose fault was it that no one scored high enough? Why was there even an issue at all?

Stephen Vladeck: Consider the not-so-distant past, when some states would use literacy tests as a pre-requisite to voter registration. Given that these states had segregated schools, odds were that literacy (a race-neutral concept) would create a racially disparate impact, where fewer otherwise qualified blacks would pass than similarly qualified whites. We are, fortunately, well past those days. But it is still true, as Justice Ginsburg explains in her dissent, that educational gaps have produced unequal opportunities for similarly situated candidates in a host of fields.

That's why Title VII makes it unlawful for localities to adopt policies that produce a disparate impact -- it assumes, rightly or wrongly, that various race-based disparities in America have their roots, if not their current cause, in prior de jure discrimination that has since been invalidated...

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San Jose, Calif.: Which case has a further reaching impact?

Stephen Vladeck: Legally, it's clear that the New Haven case (Ricci) will have a much greater impact. But it's quite possible that the real-world (and personal) impact of the Madoff scandal will be on a completely different plane. That's one of the interesting points about both of these stories making headlines today -- the law matters, but often only after the fact, when it provides punishment for egregious wrongdoing...

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Annapolis, Md.: Given that the Appeals Court Panel was unanimous, and Sotomayor claims not to have written their opinion, is this really a refutation of Sotomayor? Or was the Appeals Court just doing their job by passing it up to the Supreme Court with their "cursory treatment?"

Since this was a 5-4 decision, with Souter in the minority, doesn't this confirm that Sotomayor shares his judicial temperament, and is thus a good replacement?

Stephen Vladeck: It isn't a refutation of Sotomayor any more than any Supreme Court decision reversing a lower court is a refutation of the lower-court jurists. Sometimes, the Court goes out of its way to note that the lower courts were "plainly" or "clearly" or "badly" wrong. But in cases like this, where the law is unclear (and the disagreements so heated), that kind of rhetoric virtually never appears.

As for Sotomayor vs. Souter, I think it's a mistake to use one issue as a litmus test for how closely they are aligned. One of the things I find deeply endearing about both of them is the extent to which they both have a unique style of judging. That might make Judge Sotomayor an appropriate replacement for Justice Souter, but it only underscores that she'll vote her on way, for her own reasons.

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Affirmative Action: I have not had a chance to read the opinion, but was there any mention of the expiration of affirmative action programs? Do you think that's what Scalia was referring to? I don't remember the opinion (it may have been one about higher education -- Bakke? or Grutter v. Bollinger?) but the Court once put a hypothetical time limit on affirmative action programs (25 years, I think). Or was there a discussion on shifting demography in the US?

Stephen Vladeck: As you'll see when you look through the opinions, the Court really shied away from broader pronouncements about the state of race relations in the United States -- far more so than, for example, in the 2003 University of Michigan affirmative action cases (which included the 25-year expiration idea). This really isn't a constitutional case, but one about how to balance the seemingly incompatible goals of Title VII. Justice Ginsburg's dissent argues quite passionately that these goals 'aren't' incompatible.

Scalia's concurrence is the one exception -- he recognizes, as others have begun to, that the Court's shifting jurisprudence on race discrimination in the past 15 years is leading, inexorably, to a serious debate over the constitutionality of the disparate-impact provisions of Title VII. We're not there yet, but that could be quite an emotionally charged conversation, if/when it takes place...

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Laurel, Md.: Thanks for the earlier answer, let me see if I can catch up.

The conservative majority essentially ruled that tossing the test constituted illegal discrimination against whites (is that the core of the ruling?)

Is the left/right split on the court as regards cases like this, whether discriminating against whites is an acceptable strategy to avoid the appearance of anti-minority discrimination?

Stephen Vladeck: That's about the crux of it, yes. As for the left/right split, it's one layer more complicated than that. Since the 1970s, the more conservative Justices have argued that all race-based discrimination is equally suspect, including discrimination _against_ whites with the purpose of remedying prior discrimination against minority groups, especially blacks. Thus, these Justices have applied the same rigorous standards to affirmative action policies that their predecessors applied to state laws banning things like interracial marriage.

The more left-inclined Justices, in contrast, have argued that discrimination against whites, while still troubling, isn't _as_ inherently suspect, since it does not reflect the same kinds of historical prejudices and beliefs that was behind earlier discrimination against blacks and other minority groups. To them, government must still have a good reason for discriminating against whites, but curing the effects of past discrimination 'is' a good-enough reason.

And that's the fight. For those who believe that we are still in some places suffering the effects of prior de jure discrimination, are there other remedies _besides_ current de jure discrimination in the other direction?

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Minneapolis, Minn.: If the critics who want Sotomayor off the court for being overruled on this case get their way, then to be fair, a bunch of other Justices are going to have to go, too. Starting with Sam Alito, who's got a long string of cases that he's been overruled on...

Stephen Vladeck: A judge who's never been reversed is a judge who's never had to consider a case at the margins... There really is a meaningful distinction to draw between lower-court opinions that are subsequently reversed, and those that are criticized by the reviewing court. This is clearly the former...

One quick footnote: At the time of his confirmation, Chief Justice Roberts had recently participated in the D.C. Circuit's decision in the Hamdan case, which was itself reversed by the Supreme Court less than a year later. This happens all the time, and, in my view, just isn't that big a deal...

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Elsewhere: Is Souter going to be on the Court for the Citizens United reargument?

Stephen Vladeck: What a great question!! The terms of his resignation are "when the Court rises for the 2008 Term," or something to that effect. Technically, the reargument in the Citizens United case is taking place 'during' this Term, so, if he keeps to the letter of his resignation, yes...

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Herdon, Va.: What exactly would the dissent in the Firefighters case want the City to do differently? The City appeared to go to great lengths to make sure the promotion systems was as fair as possible. If this case failed, I don't see how anything short of quotas could ever succeed.

Stephen Vladeck: I think the dissent's point is slightly different: The city believed that it would be sued if it used this test, and so chose to ditch it. The firefighters who did best on the test did not have a right to a promotion -- it was a policy choice on the part of the city. There are lots of alternatives short of quotas -- just look at the Michigan law school case from 2003. Race as a soft variable is where a lot of modern affirmative action policies are heading, although I suspect reasonable people will disagree about the wisdom of such policies until, well, forever...

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Vegas: For the life of me I can't get my head wrapped around the logic that the city of New Haven used. Common sense would dictate that you announce a process, give the exam then promote based solely on the results of that exam. If you don't like the results then you change the process for the NEXT time, not the current one. Sir, maybe you can help me understand how the lawyers for New Haven could possibly think that it's ok to throw out an exam based on the results of that exam. If that were legal then what is the point of the exam in the first place? I always thought exams were given to produce the best candidate regardless of race, creed or color but apparently New Haven thinks differently. Please help because it makes absolutely no sense to me.

Stephen Vladeck: Under federal law, most employers, including local governments, cannot use certain tests or other employment policies that produce a significantly disproportionate impact among otherwise qualified applicants, unless they have a good, non-bias-related reason for doing so (a so-called "bona fide occupational qualification").

So New Haven used a test, and then thought that the test it chose had actually violated federal law, so they threw it out. They then got sued for violating a different provision of the same federal law. That's why this case presented a bit of a Catch-22 from the outset...

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Princeton, N.J.: If Sotomayor is asked about this decision, can't she simply point out that 4 Justices who were confirmed by the Senate agreed with her?

Stephen Vladeck: I suspect she'll have an even better answer than that -- one that likely focuses on what we've already been discussing, including the complexity of the issues and the lack of clear precedent. But I really don't see this as anything other than material for the talk shows and the newsrooms...

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Washington, D.C.: I think it's somewhat disingenuous to compare Sotomayor's actions in the Ricci case to other cases in which current Supreme Court justices have been overruled. As I understand it, Judge Cabares took her to the cleaners not on the merits of her opinion, but on the fact that she did not even write a merits opinion, thus dismissing or ignoring the constitutional/statutory claims that the firefighters raised. That's quite different -- and I agree that Sotomayor's actions were quite odd.

Stephen Vladeck: I can only speak from my own experience working for two different federal appellate judges, and not to what actually happened here. There are lots of cases that come through the Courts of Appeals that either look like they raise more issues than they do, or look far simpler than they are. Given how overworked today's Courts of Appeals are, it's just true that many of these cases get more or less attention than they should, including these kinds of summary opinions (many, indeed, don't even result in _published_ opinions).

Given that, and given that we don't know what role Judge Sotomayor even played in this case (often, only one of the three panel members plays a central role in preparing the disposition), I think it's a rush to judgment to assume, as Judge Cabranes did, that something was fishy here... In the last three or four Terms alone, the Supreme Court has taken almost 10 cases with similarly perfunctory lower-court opinions...

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Disparate Impact: This is pretty much the end of disparate-impact cases in favor of minorities, agree?

If a disparate-impact in itself does not provide sufficient evidence, what are the chances in this society a plaintiff will be able to provide strong evidence of discrimination?

Stephen Vladeck: I don't think it's the end, but it certainly will be even harder as a result of today's decision. One point in response is that, since today's decision is all about Title VII, Congress is always free to come back and re-write these provisions -- within constitutional limits -- to allow a broader class of disparate impact claims.

But I come back to the question I posed before -- to whatever extent there are still inequities in today's society that can be traced to past de jure discrimination, is there any way to remedy them without some kind of discrimination in the other direction? I think everyone agrees that, if the answer is yes, that's a better outcome. But what if the answer is no?

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Washington, D.C.: Which opinion is more activist, Sotomayor's or Kennedy's?

Stephen Vladeck: To be fair, I hate the term "activist," because it has an "all-things-to-all-people" quality. The reality is that in our judicial system, judges are often faced with cases that could go either way, and where any of us would probably inject at least some of our personal policy preferences into the mix.

To me, an "activist" opinion is one that exceeds the court's mandate, either because it goes beyond what the court was asked to resolve, or because it claims power the court does not have. By that standard, neither the Second Circuit's opinion (which was not written by Sotomayor) nor Justice Kennedy's opinion are "activist." They may be wrong, but, at least in my opinion, "activist" has to mean more than that for it to mean anything.

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Is it just me?: As a 2007 graduate of law school and prior to that a five-year Hill staffer, it seems to me the Court (and the law) becomes less and less about justice and the facts of the case and more and more political.

Is it just me or am I just becoming more jaded as a federal attorney?

Stephen Vladeck: There's no question that the Justices are political creatures. But I'm not sure that's a bad thing, even when the prevailing politics on the Court happen to be other than my own... As I mentioned a moment ago, it's inevitable that judges will have to make judgment calls sometimes, and that those judgment calls will be informed by their own experiences and personal beliefs. That doesn't make them "political"; it makes them human... I get nervous when judges cross the line, and start departing from clear precedent for personal reasons. But there are fewer of those decisions than we might think...

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McLean, Va: The whole question of whether the Court ought to consider a "timeline" for finding reverse discrimination unconstitutional at some point in the future seems to me to be essentially trying to legislate.

If judging should be about interpreting the intent of a law, and conservatives believe in restraint, why would they suppose that the original intent of the statute would somehow change in the future?

Stephen Vladeck: They wouldn't. The timeline point was suggested by Justice O'Connor in her opinion in Grutter v. Bollinger, and it was more about whether "diversity" will continue to serve as a sufficiently compelling interest to justify reverse discrimination under the Equal Protection Clause.

My own view (as I tell my constitutional law students every spring), is that the timeline is a bit silly. But it's aspirational -- we _should_ be trying to figure out how, in another generation, we will no longer need to worry about the effects of prior de jure discrimination. I just don't think we're there yet, much though I wish we were...

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Los Angeles, Calif.: I notice the firefighter case was decided 5-4, so there were justices on both sides and neither is obviously "wrong." How did Souter, whom Sotomayor will be replacing, vote on it?

Stephen Vladeck: Justice Souter was in dissent, along with Justices Stevens, Ginsburg, and Breyer...

I should say that I resist the notion that a 5-4 reversal categorically proves that the lower court judges weren't "wrong." It's less about the tally than the _reasons_ for the reversal, and here, Justice Kennedy seems not to have viewed the lower-court opinion as anything other than a good-faith effort by judges with whom he reasonably disagrees.

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Affirmative Action: Could you briefly explain what affirmative action is? With all the debate about it, I find that people, including myself, have very different ideas about what it is and how it was written. My own view, which may very well be wrong, is that it is designed to make itself obsolete without any legislative action.

Stephen Vladeck: Different people will give different answers to this question. Here's my long-winded answer:

In 1954, the Supreme Court in the Brown case held that segregation in public primary and secondary schools violated the Equal Protection Clause of the Fourteenth Amendment.

But that just means states had to stop formally segregating. Many adopted policies that led to informal (or de facto) segregation.

Then, in 1968, the Supreme Court in a case called Green held that it wasn't enough to merely end segregation; school districts had a responsibility to take affirmative action (hence the term) to also eliminate the direct effects of de jure segregation...

So affirmative action is the idea that governments have a responsibility to do more than end de jure discrimination; they also have a responsibility to take measures that alleviate the effects of that de jure discrimination (for example, by giving preferences to those who were previously discriminated against).

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Alexandria, Va.: You wrote, "Given that these states had segregated schools, odds were that literacy (a race-neutral concept) would create a racially disparate impact..."

That's not really a good example. When a prospective black voter went in to the courthouse to register in a Jim Crow state, the clerk would adapt an adversarial approach not used with white applicants. The black person would be presented with a tricky section of the state constitution to read and "interpret," and the clerk was the only one to judge if the applicant got it right. Even professors at Tuskegee University famously failed these "unbiased" tests.

"Literacy" tests were not a passive device.

Stephen Vladeck: Fair enough -- I was trying to simplify things. But there are other passive examples, including grandfather clauses and the like...

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Seattle, Wash.: How do you think the Ricci case will change how the government monitors workplace discrimination, via agencies like the EEOC and OFCCP?

Stephen Vladeck: I'm not sure it will have much of an effect on EEOC and the like at all... rather, the more immediate impact will be for local governments, who find themselves in situations like what New Haven encountered... they'll think twice, next time, before throwing out tests like this one.

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Stephen Vladeck: Sorry to those whose questions I didn't make it to, but we're out of time for today's chat. I hope my responses were useful, and I encourage those of you who'd like to follow up with me via e-mail (my address is svladeck@wcl.american.edu).

Thanks everyone, and have a great Monday!

-steve

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