Ricci, Impartiality, and Empathy

At the risk of beating a dead horse, Jack Balkin pens a magnificent piece on how criticism of the decision in the Ricci case, particularly to the extent that criticism claims it to be an example of “empathy” leading to judicial activism, simply misses the mark, particularly in its assumption that “empathy” was on the side of the City rather than the firefighter.  I say it’s a magnificent piece because it is so calm, logical and 100% accurate.  Noting that whatever your ideological position, it is impossible to conclude that the law was clearly in Ricci’s favor, only that the law is either clearly in the City’s favor or a gray area, Balkin writes:

But, you might respond, the law of Title VII is not clear. One can make arguments on both sides. This is especially so because behind the statutory question are arguments about how the Constitution applies when the employer is the government. Perhaps the judges in the second circuit panel honestly thought that the law was clear, and affirmed, thinking they were being impartial. But if so, then they were just mistaken. And if the law is not clear, then surely we should take into account the real world consequences of the law, and interpret it so that good people like Frank Ricci are not badly treated. Simple justice requires this.

Perhaps you are right about this. But this brings us to the central point. Gerson and Krauthammer can use Ricci’s case to argue for impartiality in judging because they assume that the law clearly favors Frank Ricci. But it does not. An impartial judge reading the law impartially might find against him. But if that is so, what work is the distinction between empathy and impartiality doing in their argument? Impartiality may not be on Ricci’s side; empathy may be. Or perhaps– and this is the most likely scenario– the law that applies to the case is not entirely clear.

Balkin then goes on to say:

One gets the sense in Gerson and Krauthammer’s arguments, though, that they are running together two different ideas of impartiality. One principle is that judges should be impartial in interpreting the law– they should apply the law no matter what its content happens to be, regardless of who comes before them. The second idea is that the content of the law should have a certain character– it should allow for no distinctions whatsoever based on group membership or personal characteristics. But suppose the law allows for such distinctions, for example, as current law does for certain affirmative action programs. Then the first principle of impartial application of the law whatever it may be conflicts with the second principle of neutrality with respect to groups, or, in this case, colorblindness. This problem happens all the time. Krauthammer gives the example of the progressive income tax, which taxes the rich proportionately more than the poor. If a judge was asked to apply that law impartially, he or she would not be treating rich and poor alike substantively, for the rich person would have to pay more. Rather, the judge would be impartial formally, applying the same law (which makes a distinction based on income) to rich and poor alike.

Which brings us back to the central problem: If you are impartial in the sense that we normally expect of judges, applying the law fairly as it is written without respect to persons, you might well find against Frank Ricci. Of course, as I noted before, it is far more likely that the law is actually unclear, which is why the Supreme Court is taking the case in the first place.

Obviously the strangest thing about using Ricci as an example of the evils of empathy is that Ricci is as empathetic, nay sympathetic, a Plaintiff as you will find.  In fact, despite claims to the contrary, the arguments that Judge Sotomayor was wrong in that case all put that sympathy front and center.  Rarely do they make a legal argument – although, as Balkin notes, there is a good legal argument that the law of Title VII is unclear on this point (indeed, Judge Cabranes’ much-ballyhooed dissent from the denial of rehearing en banc begins by calling the case “one of first impression,” and later terms the issues an “unsettled area of law”).   

Probably the worst thing that has been said about the per curiam decision signed by Judge Sotomayor is that it bent over backwards to make sure that the City’s affirmative action program was left undisturbed.  But this only makes sense if you think that the law was clearly in Ricci’s favor – and given the long-standing existence of Title VII, EEOC rules, and volumes of Supreme Court and Second Circuit Title VII decisions, that is simply a conclusion that cannot be made.  At best, you can say that even though validating the test results would have been a Title VII and/or equal protection violation, this does not excuse the resulting discriminatory effect on Ricci of invalidating the results – once the test results were known, a violation of Title VII was inevitable and the City was not privileged to decide against whom that violation would be made.  While there may be some merit to this theory, it is not a theory that seems to have much existing law behind it, and I haven’t seen anyone claim otherwise.

Underlying all these criticisms, then, is not an argument that Judge Sotomayor engaged in “activism,” as is claimed, but rather an unspoken concession that sometimes the law is unclear and when that happens, judges must make new law based on their conception of “justice.”  Given the arguments for why the Second Circuit should have ruled in Ricci’s favor, it seems that the fiercest critics of Sotomayor think that conception should be based on – dare I say it – “empathy.”

One final note – SCOTUS Blog points out that one potential problem with Sotomayor’s decision is that it didn’t properly weigh whether the District Court disregarded evidence that the City’s claim of being concerned about Title VII was a pretext for invalidating the test results based on a discriminatory animus.  This would not make sense to me – it’s fairly difficult to believe that concerns about a Title VII violation were merely pretextual where there is little dispute that a Title VII violation would have occured.  There could conceivably be evidence to support a so-called “mixed-motive” theory of discrimination (rather than a “pretext” theory) justifying a remand to the district court for determination on that theory.  But if that were the basis for a reversal, it would be improper to use it as a basis to go after Judge Sotomayor, as this theory was apparently first proffered on appeal, and then only by an amicus group.  Usually, you can’t raise arguments on appeal that were not raised below.