Steve Sailer & Half Sigma were happy that Ricci won, but thought it still disheartening that four members of the court signed on to Ginsburg’s dissent. The only Supreme Court decision I’ve read before was D.C vs Heller (and though conflicted regarding the result, I still viewed some arguments for the city as embarrassing). There’s a saying that hard cases make for bad law, and in this case the law was already bad enough that Ginsburg didn’t need to go out on a limb. If you’ve really got a dog in the fight a case may look easy and then the only explanation for a judge ruling the other way must be bad faith. A difference of one vote on the court not only gave Ricci a victory, but reduced the potential liability of a municipality in New Haven’s position, thereby undermining both their legal defense and incentive for the action they had taken. While the Supreme Court is to blame in Griggs for introducing liability for disparate outcomes from equal treatment with no evidence of intentional discrimination, it is still the case that Congress amended Title VII to explicitly prohibit disparate outcomes later. It is also case that the law makes some allowances for compromising equal treatment to avoid liability for disparate outcomes. Only Scalia’s concurrence (not joined by any other justice) broached the subject that the law itself may be contradictory and require changes down the road. This sort of thing is why John Hasnas wrote The Myth of the Rule of Law (see part II in particular) and to a significant extent why Bryan Caplan considers law a shockingly phony discipline.

Note that I am only saying that the dissent by those four justices is defensible. That does not constitute a defense of Sotomayor, as not even the dissenting judges agreed with her. Nor am I defending the actions of Destefano and other New Haven politicos.

For those interested in my own opinion on the case, it will take me a while because I’m so far out there. I don’t see why the Supreme Court should have any jurisdiction over a dispute between the New Haven government and some of its employees. The civil rights laws the city is violating were passed by the federal government, but the constitution doesn’t give the federal government the power to tell city governments (other than D.C) what to do. There are some things like producing currency or conducting foreign policy that are exclusively the domain of the federal government, but the tenth amendment leaves everything else to the states.

I’m crazy enough of a libertarian that I think privatizing firefighting is a good idea, and I think private employers should be able to do whatever the hell they want in their employment decisions provided they abide by contracts. As long as firefighters are paid with tax dollars though, I think it makes sense to use the standard bureaucratic civil service rules we all (except Mencius Moldbug) have cherished ever since Garfield was assassinated, with as heavy a weighting as possible in the most objective measurements (like New Haven’s written test rather than the assessment centers offered as an alternative) to serve the taxpayer’s interest by maximally exploiting the labor market without politics or other management preferences interfering. It does not make sense to allow public sector labor unions. They used to be illegal, but as the creative destruction of competitive markets have eroded organized labor’s place in the private sector they have thrived on the government’s teat. A private company can try to calculate whether it will be more profitable to wait out striking workers, replace them with scabs, or try to meet their demands at the negotiating table. The government just keeps throwing more and more money that it doesn’t have, without getting any more labor.

UPDATE: As long as I’m talking law, I should note that Nick Szabo has compiled a best-of list of his online writings. For readers who want some of my own uninformed legal perspective, Judical empathy and Judicial restraint are some more recent stabs at the law.

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