Monday, June 29, 2009

9-0 Against Sotomayor   [Ed Whelan]

In footnote 10 of her dissent, Justice Ginsburg, agreeing with the position that President Obama’s Department of Justice took, states:  “Ordinarily, a remand for fresh consideration [whether the City of New Haven in fact had good cause to act] would be in order.”  But because the majority saw no need to remand, Ginsburg explains “why, if final adjudication by this Court is indeed appropriate, New Haven should be the prevailing party.”  (Emphasis added.)

In other words, Ginsburg doesn’t believe that final disposition of the case is appropriate.  She and her fellow dissenters therefore believe that Sotomayor and her Second Circuit colleagues and the district court were wrong to grant summary judgment to the City of New Haven.

[Update/clarification:  Ginsburg believes that Sotomayor and the other judges below applied the wrong standard:  “The lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act.”  I haven’t had time to examine whether Ginsburg’s standard is in fact the same that DOJ advocated and have therefore struck through the passage above.  I’ve also corrected a misquotation.]

06/29 10:42 AMShare