Tuesday, May 25, 2010

Of Good Days and Evil Ones

By Mike Dorf

Yesterday's Supreme Court decision in Lewis v. Chicago marked a good day for the Court.  In a unanimous opinion authored by Justice Scalia, the Court held that African-American applicants to become Chicago firefighters who earned scores in the "qualified" range but not in the "well qualified" range could bring a disparate impact lawsuit if it was timely relative to when the City applied the categories, even though untimely relative to when the City first made the classifications.  That's perfectly sensible.  Under the relevant statute and regs, a plaintiff has 300 days to file from "after the alleged unlawful employment practice occurred."  Each time the City used the tainted list--the one drawing only from the "well qualified" pool--it produced a new  disparate impact, i.e., a new "unlawful employment" decision.

Give all the Justices high marks for a sound procedural holding that puts aside whatever ideological divisions they have on matters of racial justice.  I have in the past called out Justices (including Justice Scalia), for elevating ideology over their jurisprudential principles.  Here, I'll praise Justice Scalia for applying his brand of textualism, even though it produces a liberal result.  (The opinion is full of textualist chestnuts, such as: "It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.")

And yet there's something very peculiar about Justice Scalia writing an opinion that matter-of-factly expounds the disparate impact rule of Title VII, for it was less than a year ago that this same Justice Scalia warned, in his concurrence in Ricci v. DeStefano, of the inevitable coming of the "evil day" when the Court will have to confront the question whether the disparate impact prohibition is itself unconstitutional (insofar as it produces intentional discrimination against non-minorities by employers trying to avoid disparate impact on minorities).  I understand that Chicago did not argue that the disparate impact prohibition was unconstitutional, and so Justice Scalia and the Court did not have to address the issue.  Nonetheless, it is unsettling for the Court to say that the law is the law and if you don't like it ask Congress to change it, even as the very Justice through whom the Court says that has also indicated that he has substantial doubts about the law's constitutionality.  Disparate impact entered the Title VII case law nearly 40 years ago (in the Griggs case), and was codified nearly 20 years ago. I think Title VII's disparate impact rule is constitutionally valid, but if the Court has its doubts, one would expect them to be resolved already.