UPDATE: For detailed coverage of today's action including the firefighter decision and the national bank case, check The National Law Journal site here.
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A feeling of finality blended with a sense of unfinished business this morning at the Supreme Court's final sitting of the current term. The Court issued two of its three remaining decisions -- Ricci v. DeStefano, the New Haven firefighter case, and Cuomo v. Clearing House Association, on the regulation of national banks. And It bade a poignant farewell to Justice David Souter on the occasion of his retirement from the Court after 19 years.
But in the rarest of moves, the Court also scheduled its third remaining case for re-argument Sept. 9. The case is Citizens United v. Federal Election Commission, on whether the so-called "Hillary movie," a movie critique of then-candidate Hillary Clinton, violated campaign finance laws. Ordinarily when the Court can't resolve one of its cases, it will reschedule it for argument in the fall, meaning after the first Monday in October, when it resumes hearing oral argument for the new term. Today's action puts the case on the docket in an odd limbo period during the Court's usual summer recess. One possible explanation has to to with the Court's strong tradition of completing all of one term's work before the next term begins. Perhaps the justices hope that by scheduling new arguments for Sept. 9, they can issue a decision by the time the current term ends just before Oct. 5.
The big news from the morning was of course the Ricci decision, in which a 5-4 majority, led by swing justice Anthony Kennedy, found that New Haven's decision to discard the results of a firefighters' promotion exam violated Title VII of the Civil Rights Act because it amounts to discrimination on the basis of race. No African-American applicants had passed the test, and the city argued that it tossed out the exam, ironically enough, out of fear that it would be sued by the African-American applicants for violating Title VII on a "disparate impact" theory.
That justification did not meet the standard promulgated by Kennedy, which requires a "strong basis in evidence" before it can make employment decisions based on fear of Title VII liability.
After Kennedy summarized his opinion in a matter-of-fact tone, Justice Ruth Bader Ginsburg read mournfully from her dissent. New Haven had acted properly in the face of test results that opened the city to a civil rights suit, she said. "Congress endeavored to promote equal opportunity in fact, and not simply in form," she said. "The damage today's decision does to that objective is untold.
In the opinion there was no reference to the fact that the Court was overturning a ruling by a three-judge panel of the U.S. Court of Appeals for the 2nd Circuit that included Supreme Court nominee Sonia Sotomayor. But Ginsburg did get off one shot, noting that the white and Hispanic applicants who passed the exam only to have the results tossed out "understandably attract the Court's empathy." In the text of her opinion, she used the word "sympathy" instead of empathy, but "empathy" is the word President Barack Obama has used to describe a quality he wants in a justice. Conservatives have attacked Obama and, through him, Sotomayor, for valuing that criterion, and Ginsburg's comment was a pointed assertion that conservatives use empathy too. Joining Ginsburg in dissent were John Paul Stevens, David Souter, and Stephen Breyer.
Soon it was time for the farewell to Souter from the justices. Chief Justice John Roberts Jr. read from a joint letter to Souter, dated today, describing a "profound sense of loss" the justices have felt since Souter announced his retirement May 1. "We deeply value the times we have shared in judicial service," Roberts added. "We understand your desire to trade white marble for White Mountains. The letter expressed the hope that "your sturdy friendship will endure long beyond your departure from the bench and tables we have shared."
The shy Souter, who looked down while Roberts read the letter, leaned forward to read his own letter expressing his appreciation for the justices' letter. He said would not "retire from our friendship, which has held us together despite the pull of the most passionate dissent. It has made the work lighter through all my tenure here, and for as long as I live, I will be thankful for it, and be under a very grateful obligation to each one of you." Souter's voice seemed to quiver as he spoke.
Next came Roberts' traditional words of thanks to the Court staff, followed by the marshal's unusual statement that the Court was in recess until Sept. 9 -- not the usual first Monday in October. She banged the gavel, and without further ceremony, the Court was done for the summer -- mostly.
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