Listening to and re-reading the dissenting opinion of Ricci v. DeStefano, penned by Justice Ginsburg, was like fighting an uphill battle against logic. The dissenting opinion was the same judgment prescribed to by Sonya Sotomayor.
The Ricci v. Stefano case began when 18 firefighters who passed the required test to be promoted were not because their racial representation was disproportional to the general population. The city concluded that there was not enough minority representation out of the 18 for the promotions to occur. The test results were thrown out, and the promotions were cancelled.
The dissenting opinion in Ricci v. DeStefano is evidence of what occurs when one’s deep feelings replace logic as the basis of justice.
The first argument that the dissent held was that having the test results thrown out because there were more non-minority than minority success was not discrimination against non-minority. The dissent wrote, “[T]he intent to remedy the disparate impact” of a promotional exam “is not equivalent to an intent to discriminate against non minority applicants.”
To the dissent, the motivation to re-balance minority representation outweighed the injury of having promotions taken away from non-minorities and nullified any claim of discrimination. What is the definition of discrimination, then?
The flaw of being empathetic is that it is completely tied in one’s assumptions as opposed to fact. While the intent was not to injure the non-minority, the result was an injury to the non-minority firefighters. What one feels plays no part in fact.
Logic leaves us with the raw facts of what occurred. In this case, men who were qualified for promotion had their promotions cancelled not based on the merit of their work but because a select race was not competitive.
The second argument made by the dissent was that the test given to the firefighters was flawed. Their basis for this analysis rested upon a subjective disapproval of the 60/40 written and verbal test. They found this to unsatisfactory with other tests which can yield results which are “better” in their opinion.
The irony is that this test was designed to avoid race-based law suits. Every aspect of the creation of this test was designed to be subjective and non-biased. The test was designed and analyzed by an outside group Industrial/Organizational Solutions, Inc, and the tests 60/40 written-verbal design was aligned with the Union’s standards.
The test was analyzed and found to be “facially neutral.” The examiner said he would “would stand by the[ir] validity.” What the dissent found to be flawed were the results. Ginsburg wrote that “…overt racism was partly to blame, but so too was a failure on the part of municipal employers to apply merit-based employment principles”
Here again is where logic and feeling collide. To most people, merit is something that is measured based on evidence, like one’s actions or the results of how they do on a test. Yet for those deeply feeling judges, merit is based on something different, a social construct which they prescribe to. The degree to which a test or an action aligns with this construct determines whether or not the test or action has merit.
The third and last point of the dissent was best stated by Ginsburg when she wrote, “By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served — as it was in the days of undisguised discrimination — by a fire department in which members of racial and ethnic minorities are rarely seen in command positions.”
If race shouldn’t be a factor, then… it shouldn’t be a factor. If we want to take away the “long shadow of racism,” then the response is to allow people of different races to help one another and compete together. When one thinks of firefighters, it is not the “command position” that one pictures but the public service that they do for the community.
What is promoted by Ginsburg’s comment is a furthering of de facto segregation. It is a claim that one can only feel like part of a community if their race is seen at every level of the community. Yet that holds that one sees himself or herself not as an individual but as a smaller part of a group. Individuals can respect individuals regardless of external differences, yet groups will always respect their group first. This is not a stance on human behavior that the Supreme Court should or does promote, as the decision made evident.
The dissenting opinion feels illogical because it is not cemented in fact. The dissent did not see what was plundered from one because it could only see what it wanted to create. The law cannot create anything without taking from another. The majority of Justices grasp that great truth.
People who feel deeply, like Sotomayor and Ginsburg, must interject their subjective view to choose who to feel for or what to feel. Yet logic, ordered justice, does not require one to form a personal bias. Its merit carries itself without one’s added emotionalism. Emotionalism must always battle with logic, because it is deeply connected to self.