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Why ‘ricci’ Should Frighten Democrats

Barry Friedman is the Jacob D. Fuchsberg Professor of Law at New York University School of Law. His book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Constitution, will be published by Farrar, Straus and Giroux in September.

The Supreme Court's Ricci decision looks to be a double blessing for conservatives, who not only adore the result, but may also get two extended opportunities to pound on the issue.

The first will be the confirmation hearings for Sonia Sotomayor to fill Justice David Souter's seat on the Supreme Court. The Ricci decision overturned a summary ruling Sotomayor had rendered on the Court of Appeals. Even before the justices ruled, many were arguing that Sotomayor's curt affirmance of the trial court was inappropriately dismissive of the larger issues at stake in the case. Commentators have already connected up the Supreme Court's strong reversal of Sotomayor with the leading criticism of the nomination: her recorded comment that "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

As if the Sotomayor hearings won't be enough, it is quite possible the Ricci ruling will be taken up by Congress. The Court took the right legal step in putting its ruling on statutory rather than constitutional grounds. But when the Court interprets a statute, Congress can reverse that interpretation. For the second time this term, Ginsburg seemed to be reaching out over her colleagues' heads to ask Congress for a fix. "The Court's order and opinion," she wrote, "will not have staying power." Especially because the Ricci ruling puts businesses in a sort of "damned if you do, damned if you don't" posture, there may be pressure on Congress to take up the issue.

The last thing the Democrats should want, though, is an extended debate over Ricci. It is, if anything, a tale of two competing stories based in life experience. The opinions were unusually mired in the facts. Justice Anthony Kennedy made much of how dyslexic Frank Ricci prevailed on the firefighter promotion exam through sheer hard work, only to have his gains snatched through the chicanery of racial politics because too many whites did too well. Former civil rights advocate Ruth Bader Ginsburg, writing for the dissenters, argued the majority failed to understand how tests like the one at issue in Ricci were used to keep minorities from getting ahead. But next to Kennedy's story, Ginsburg's dissent seems pretty abstract and colorless.

Affirmative action and race politics are issues on which Americans have profoundly ambivalent views. When the Supreme Court had its last big race cases--the University of Michigan affirmative action cases of 2003--polls showed 69 percent of Americans favoring "merit" admissions, even if this meant few minorities would be enrolled. At the same time, though, a CBS-New York Times poll showed 79 percent of the country believed it "important for a college to have a racially diverse student body."

But nothing succeeds in bringing these seemingly irreconcilable views into line better than an evident "victim" of racial politics--and as portrayed by Kennedy, Frank Ricci fits the bill. This victim talk was the wedge Reagan-era Republicans exploited so well. In his 1992 presidential race, Bill Clinton called this sort of wedge politics the "old scam" of scaring the "living daylights" out of lower-class voters. And remember Willie Horton? With the diversifying face of American politics, these sorts of arguments were losing their luster. But Kennedy's opinion in Ricci could provide just the fodder those seeking a revival were looking for.

Perhaps Justice Ginsburg was right: With a strong Democratic majority in Congress and Barack Obama in the White House, the majority opinion in Ricci might not have "staying power." Then again, one should be careful what one wishes for. If a bill reversing Ricci becomes a congressional hot potato, Ginsburg could find herself wishing the discussion of the decision would go away rather quickly, before it does more damage to the cause she cares about so deeply.

--Barry Friedman