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Judicial Activism

Judicial activism occurs when judges write subjective policy preferences into the law rather than apply the law impartially according to its original meaning. As such, activism does not mean the mere act of striking down a law.

Ricci v. DeStefano


Nineteen white firefighters and one Hispanic firefighter charged that New Haven city officials engaged in racially discriminatory practices, in violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, by throwing out the results of two promotional exams because the city officials concluded that an insufficient number of racial minorities had scored well enough to be promoted (the firefighters who did score well enough were denied promotions).  Frank Ricci, the lead plaintiff in the case, had been a firefighter at the New Haven station for eleven years and placed sixth among seventy seven people who took the lieutenant's test.  He gave up a second job to have time to study for the test, and, because he has dyslexia, he paid an acquaintance $1,000 to read his textbooks onto audiotapes.

On appeal, Judge Sonia Sotomayor’s three-judge panel issued a perfunctory, one-paragraph order affirming the district court’s ruling in favor of the city of New Haven.  The panel subsequently withdrew its summary order and published a per curiam opinion that incorporated the district court opinion. The opinion is short enough to quote in full:

We affirm, substantially for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs' expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.


The handling of this case by Judge Sotomayor and the other members of the Second Circuit panel is troubling both substantively and procedurally.  The panel’s terse handling of the case, and the White House’s subsequent defense of the decision as a paradigm of judicial restraint in which Judge Sotomayor simply applied precedent, smacks of judicial dishonesty.  In his dissent from the denial of en banc review (a review which only happened because Judge Cabranes read about the case in the newspaper) Clinton appointee Judge Cabranes expressed his deep concerns about the dismissive approach utilized by Sotomayor and her colleagues in this case. Far from following precedent, Cabranes, in stating why he thought the full Second Circuit should have reviewed the Sotomayor panel’s decision, stated that "[t]he questions raised in this appeal ... are indisputably complex and far from well-settled." He noted that the case raised issues of "first impression"--that is, questions never decided before by the Second Circuit. So much for just following precedent.

Judge Cabranes added that Sotomayor’s panel’s "perfunctory disposition rests uneasily with the weighty issues presented by this appeal" and emphasized that in cases "[w]here significant questions of unsettled law are raised on appeal, however, a failure to address those questions--or even recognize their existence--should not be the approved modus operandi of the U.S. Court of Appeals." He concluded with what is perhaps the core of the indictment against Sotomayor’s handling of this case: "this Court has failed to grapple with the questions of exceptional importance raised in this appeal."

While the Second Circuit’s terse opinion is brief, it still manages to contort the text of Title VII of the Civil Rights Act of 1964.  Contrary to the conclusory statement that Ricci does not have a viable Title VII claim, Ricci and the co-plaintiffs clearly had a claim of disparate treatment under Title VII, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.”  On review, the Supreme Court rejected the theory underlying the Second Circuit’s opinion, namely that an employer can engage in overt discrimination to avoid the speculative claim that they might be sued for statistical disparities in hiring, finding that at a minimum an employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take race-conscious action, which the City of New Haven did not.

Case Basics


Court & Reporter NumberSecond Circuit, 530 F.3d 87

Type(s) of Activism
  • Contorting Text
  • Judicial Dishonesty
Area(s) of law
  • Civil Rights and Racial Preferences
  • Equal Protection
  • Rosemary S. Pooler
  • Robert D. Sack
  • Sonia M. Sotomayor