It is worth pausing to discuss the importance of the Supreme Court’s decision on Monday in Ricci, the New Haven firefighters’ case.

The case arose after New Haven, Connecticut spent over $100,000 developing a promotion exam for lieutenants and captains. They hired an outside firm to do so, and that firm took extensive steps to assure that the test was job related, and to assure that minority experts were overrepresented in the process at every step to assure that the test was not racially slanted. When the test results came out, however, the city determined, after substantial strong-arming by a former fire commissioner who had to step down after saying that new recruits would not be hired because "they just have too many vowels in their name[s]," that an insufficient number of minority candidates would be promoted, so they opted to throw out the test. Frank Ricci was among those who would have been promoted under the test. Ricci suffered from a learning disability, and therefore had to have the study materials read onto tapes for his review. This made his study process longer, and more costly than it was for other test-takers, but he succeeded.

What made this case somewhat peculiar is that the court of appeals panel that heard the case (on which Judge Sotomayor sat) failed to even address the merits of the case, affirming on the basis of the district court opinion. This is ordinarily reserved only for cases that are frivolous, or where the law is so settled that it is not worth the court addressing. The Supreme Court, which hears less than 80 of the 10,000 cases appealed to it every year, disagreed about the importance of the legal issues, and disagreed with the Second Circuit’s conclusion that overt discrimination could be justified in order to address potential disparate impact.

While the decision just addressed the statutory claims, it was nonetheless solid. The court recognized that there was no question but that New Haven discriminated based on race: "The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action." The Supreme Court that mere fear of disparate impact claims, absent substantial basis in evidence, was not a permissible justification.

What then is to be made of the case, and its impact on the Sotomayor confirmation hearings, which are scheduled to begin July 13? Let’s begin with the observation that Judge Sotomayor not only reached the wrong decision in this case, allowing overt racial discrimination in protection of what were essentially soft racial quotas, but she did so in a dismissive one-paragraph opinion which seemed calculated to bury the case from future review. Both her dismissive treatment of important rights in this and a prominent Second Amendment case, and the apparent bias that these cases display will likely be fertile ground for questions in her confirmation hearings.

In response to the Supreme Court’s opinion, defenders of Sotomayor have attempted to paint her opinion as one showing that she is not an activist. White House spokesman Robert Gibbs said: "Some of the very concerns that members of the Senate have expressed about judicial activism seem to be, at the very least, upside down in this case. Her ruling on the Second Circuit denotes that she’s a follower of precedent[.]"

The only problem is that it’s just not true. But you don’t need to take our word for it. Clinton appointee to the Second Circuit, Judge José Cabranes, expressed his deep concerns about the dismissive approach utilized by Sotomayor and her colleagues in this case. Far from following precedent, Cabranes, in stating why he thought the full Second Circuit should have reviewed the Sotomayor panel’s decision, stated that "[t]he questions raised in this appeal ... are indisputably complex and far from well-settled." (emphasis added). He noted that the case raised issues of "first impression"--that is, questions never decided before by the Second Circuit. So much for just following precedent.

Judge Cabranes added that Sotomayor’s panel’s "perfunctory disposition rests uneasily with the weighty issues presented by this appeal" and emphasized that in cases "[w]here significant questions of unsettled law are raised on appeal, however, a failure to address those questions--or even recognize their existence--should not be the approved modus operandi of the U.S. Court of Appeals." He concluded with what is perhaps the core of the indictment against Sotomayor’s handling of this case: "this Court has failed to grapple with the questions of exceptional importance raised in this appeal."

Regrettably, Sotomayor has demonstrated a pattern of failing to grapple with questions of exceptional importance. In her opinion in Maloney v. Cuomo, in which she found that the Second Amendment does not apply to the states, she tersely declared that a state statute restricting possession of weapons does implicate a fundamental right--the full consideration of which was measured in a handful of words. Like in the firefighters case, she concluded this without even grappling with the arguments–indeed without any explanation whatsoever.

This is all the more troubling because of her statements embracing personal bias. In the very same speech where she issued the well-calculated and well-quoted assertion about the superior judgment of wise Latina women, she questioned whether it is possible for judges to overcome personal sympathies or biases "in all or even in most cases." She even seemed to think that ruling based upon these biases is somehow patriotic: "I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society."

The passing of the iconic figure and "heart-throb" of my misspent youth did not affect me in the quite the same way that it seems to have affected American media--so I began to wonder if there was something "off" in me. According to all reports, I’m supposed to feel this tragedy in the depths of my soul. And yet, I don’t. Perhaps that’s because, to echo Andrew Breitbart who earlier this week filled in for Dennis Miller’s radio show, to me Michael Jackson died a long time ago. I think it started with the llama phase, continued because there was nothing "really, really ’bad’(i.e., good)" about Bad, and certainly culminated in the 1993 charges against him. So that’s why, until I read this, I did not even really feel any compulsion to think or comment about it and was stupidly surprised by all of the crazed coverage.

But this story about the 13 year-old being forced to trade in his iPod for a Sony Walkman and finding that device somewhere between "quaint" and not "a credible piece of technology" reminded me of Jackson. It seems to me that Jackson is--or rather, he was--something like that that Walkman. He was an innovation that was a real game changer when he emerged, rather like the Walkman, and yet behind the force of his public persona was a kind of feigned or, maybe, a genuine quaintness that made him something beyond a "credible piece of technology." In the end, it is limited and it disappoints. The potential for or the idea of greatness was there, but it could not come from the vessel in which the idea of that greatness dwelt.

The 13 year-old me would have given anything to have had a Walkman with a cassette tape of Thriller. A quarter-century later, I have both a Walkman and an iPod and use them both, primarily, for the even more quaint past-time of reading books. And I’m grateful, too, that if the authors of said books have ever taken up with llamas, pre-pubescent boys, illicit drug activity, or daughters of famous rock stars, I don’t have to know anything about it from that source--for, unlike the news media, the iPod won’t tell me anything I don’t ask it to give me. I suppose there are some vital things missed by our ability to curl up into ourselves and self-program our entertainment and information these days. "Experts" insist that this is so and bemoan our fragmentation for a living. No artist may ever sell as many records (or whatever they call them these days) as Michael Jackson did. This is because we are all so fragmented now and there is a flavor for every taste--nothing drives our collective taste, we’re told. The mantra seems to be that the "common experience" we once shared because of our limited choices in media and entertainment is a thing of the past and something not entirely salutary. Perhaps there’s something to this.

It might be that you’re wondering why I haven’t posted lately. No, it’s not because i finally got a life. Or even because I refuse to rush to judgment on the true cause of Michael’s death (although it may be prudent not to follow the lead of TV’s Dr. Chopra and remain silent until the toxicology report acutally shows up).

Interesting and perceptive comment from The New Republic’s Tom Goldstein on Justice Thomas:

No other member of the Court is so independent in his thinking. The irony of course is that there remains a public perception, rooted in ignorance, that he is the handmaiden of other conservative Justices, particularly Justice Scalia. I disagree profoundly with Justice Thomas’s views on many questions, but if you believe that Supreme Court decisionmaking should be a contest of ideas rather than power, so that the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.

Will the Supreme Court’s ruling in the Ricci case have an impact on the Sotomayor nomination? Should it? At the very least, the Court showed contempt for Sotomayor’s ruling:

it was hardly to be expected that the five more conservative justices -- who held that the city had violated the 1964 Civil Rights Act by refusing to promote the firefighters with the highest scores on a job-related promotional exam because none were black -- would endorse an Obama nominee’s ruling to the contrary.

What’s more striking is that the court was unanimous in rejecting the Sotomayor panel’s specific holding. Her holding was that New Haven’s decision to spurn the test results must be upheld based solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.

Jack Hough makes an argument similar, in some ways to the one that Charles Murray has been making of late. College is no longer a sure economic proposition. That’s a crude way of looking at it, but given the state of things, we should also add that nowadays it often is not, in fact, a sound educational proposition either.