Greetings, Court fans!
The Term is, for practical purposes, over, but I’m still working my way through the backlog. This Update will bring you a complete discussion of
Ricci v. DeStefano (07-1428) and
Cuomo v. Clearing House Association, L.L.C. (08-453), both mentioned in Monday’s Update, as well as
Melendez-Diaz v. Massachusetts (07-591), where the Court held that defendants in drug cases have a Sixth Amendment right to cross-examine analysts who test the substances seized by police. After this, I’ll have one last Update for you to wrap up the Term.
The most controversial case of the week (and perhaps the Term) came with some local flavor for those of us with ties to New Haven. In Ricci v. DeStefano, the Court held 5-4 that the City of New Haven violated Title VII of the Civil Rights Act when it scrapped the results of a firefighter promotional exam that would have led to the advancement of 17 white and 2 Hispanic firefighters. As part of the City’s 2003 exam for firefighter promotions to lieutenant and captain, applicants were screened using written and oral examinations, with the total score weighted 60/40 (written/oral). After a three-month study period, 118 firefighters took the exam, which resulted in a very low pass rate for blacks and Hispanics. In response, the New Haven Civil Service Board (CSB) – the municipal body charged with certifying a ranked list of those who passed the test – held several meetings and ultimately refused to certify the test results. Petitioners (white and Hispanic firefighters who would have been promoted) sued, alleging violations of Title VII, among other claims. The district court granted summary judgment to the City and the Second Circuit affirmed. The Court reversed, holding that the City’s failure to certify the test results violated Title VII.
Writing for the majority, Justice Kennedy framed the issue as a conflict between Title VII’s prohibition against intentional discriminatory conduct (“disparate treatment”) and its prohibition against nondiscriminatory practices that have a disproportionately adverse effect on minorities (“disparate impact”). According to the majority, the City’s decision to reject the exam results and refuse to promote the petitioners solely because they were white and Hispanic was a race-based decision that “would violate the disparate-treatment prohibition of Title VII absent some valid defense.” The City’s defense was a good faith belief that it would be liable under Title VII’s disparate impact provisions if it certified the test results. But that “good faith belief” was not sufficient to excuse the City’s race-based decision not to certify the test results. Borrowing language from equal protection cases, the Court fashioned a “strong basis in evidence” test, and held that “before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability.”
The City could not meet that test. While the statistical disparity in the test results was significant, the majority held that statistics alone could not provide the required strong basis in evidence. Instead, the City could only be liable for disparate impact discrimination if: (1) the promotion exams were not job related and consistent with business necessity, or (2) there existed an equally valid, less discriminatory alternative that the City had refused to adopt. According to the Court, the evidence did not support either prong. In fact, several of the alternatives that respondents proposed as less discriminatory options (such as weighting the test scores differently) would have violated Title VII’s prohibition of altering test scores on the basis of race. Justice Scalia penned a separate concurrence, noting that the Court’s decision made it unnecessary to resolve whether Title VII’s disparate impact provisions could be squared with the Constitution’s equal protection clause, a question he characterized as “not an easy one.” Justice Alito also wrote separately; a scathing concurrence that accused the City of pretext and political pandering to a powerful New Haven pastor.
Justice Ginsburg, joined by Stevens, Souter, and Breyer dissented, accusing the majority of ignoring evidence of multiple flaws in the City’s promotion exams and relying instead on the false premise that the City rejected the test results “in sole reliance on race-based statistics.” Justice Ginsburg chastised the majority for creating a fictional “conflict” between Title VII’s core directives, and argued that the true conflict was between the majority’s “enigmatic” new test and the important goal of encouraging employers to comply voluntarily with civil rights law. Fashioning her own test, Justice Ginsburg concluded that an employer may jettison an employment selection device that has a disparate impact as long as the employer has “good cause to believe” the device would not withstand examination for business necessity. She then held that the City had ample reason to believe that its selection process would not meet this test – including, for example, the use of written exams as the largest part of the examination (with 60/40 weighting), when there is evidence that written tests often have a disparate impact and are not likely to identify the most qualified fire-officer candidates. Ginsburg wondered why evidence of the tests’ multiple deficiencies did not, at a minimum, create a triable issue of fact under the majority’s new strong-basis-in-evidence test. At the very least, the Court should have remanded for the lower courts to apply the new test, rather than granting summary judgment to the firefighters.
Next, in Cuomo v. Clearing House Association, L.L.C., the Court held 5-4 that the National Bank Act (NBA) did not pre-empt enforcement of state fair lending laws. New York’s Attorney General (AG) sent letters “in lieu of a subpoena” seeking non-public information from certain banks to determine whether they were violating New York’s fair-lending laws. The federal Office of the Comptroller of the Currency (OCC) and the Clearing House Association, a banking trade group, sought and received an injunction prohibiting the requests from the district court, on the basis that the OCC’s regulations pre-empted this type of state law enforcement action. The Second Circuit upheld the injunction, and so did the Court . . . but not without undoing the lower courts’ analysis and dramatically limiting the preemptive effect of the NBA in the process.
Justice Scalia played the unusual role of swing-voter, joining Justices Stevens, Souter, Ginsburg, and Breyer to form the majority. Scalia also authored the Court’s opinion, which is commonplace for the swing justice (just ask Kennedy). Under the NBA, “[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law . . .” The OCC had interpreted “visitorial powers” to include conducting examinations, inspecting or requiring the production of books or records, or prosecuting enforcement actions. While Chevron requires the Court to defer to a reasonable agency interpretation of an ambiguous statutory provision, here, the OCC’s “expansive regulation” stepped over the “outer limits of the term ‘visitorial powers,'” which the Court could discern even “through the clouded lens of history.” That history revealed a distinction between the right of the sovereign to inspect, control, or examine, on the one hand (“sovereign-as-supervisor”); and the power to enforce the law, on the other (“sovereign-as-law-enforcer”). Only the former constituted “visitation,” which was pre-empted by the NBA. In this instance, however, the AG’s requests threatened not a civil suit, but a subpoena under New York’s Executive Law. Since this was not an exercise of law enforcement “vested in the courts of justice,” the Court upheld the injunction issued below, with the proviso that the AG could bring a judicial enforcement action instead.
Justice Thomas, joined by the Chief, Kennedy and Alito, dissented. He found the term “visitorial powers” to be sufficiently ambiguous as to justify deference to the OCC’s interpretation under Chevron. Plowing through some ancient caselaw, Thomas concluded that the term “visitation” had different meanings depending on the type of entity to which it was applied. For example, the power of visitation over a church or university was narrow in scope, while visitation over a civil corporation (including a bank) was broad, including the power to enforce the laws. The majority wrongly conflated the two and thus misinterpreted the scope of “visitation.” The OCC’s regulation, on the other hand, was consistent with this history, was not unreasonable, and should be upheld.
In another case of odd-bedfellows, Justices Scalia and Thomas, joined Justices Ginsburg, Stevens and Souter to hold in Melendez-Diaz v. Massachusetts, that a defendant in a drug case has a Sixth Amendment right to confront an analyst who tests and certifies that the substance seized by police is an illegal substance. Therefore, the prosecution must present such an analyst at trial and allow him to be subjected to cross examination unless the defendant waives that right.
For Scalia, who, once again, led the Court, this was a straightforward question. The Sixth Amendment provides that in all criminal prosecutions, “the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford v. Washington (2004), the Court concluded that this Confrontation Clause applied to “testimonial statements,” including “affidavits . . . or similar pretrial statements that declarants would reasonably expect to be used prosecutorially.” Here, the analyst’s certificate stating that the evidence seized contained cocaine was akin to an affidavit. Because it was prepared for the very purpose of prosecution, it fell within the “‘core class of testimonial statements,'” and the defendant therefore had a right to confront the certifying analyst at trial. Justice Thomas wrote a separate concurrence to underscore that he joined the Court’s opinion only because the certifications at issue were plainly affidavits.
The dissent, led by Justice Kennedy, argued that those who perform scientific tests on evidence are not among the types of witnesses covered by the Confrontation Clause because they are neutral witnesses, who do not directly observe the defendant’s conduct, and do not directly accuse the defendant of wrongdoing. The Court disagreed, explaining that these witnesses present evidence that is essential to convicting the accused—thus, they are witnesses against him. Moreover, analysts (who often work in state-run labs) may not always be neutral, and they may not be competent—both of which are good subjects for cross-examination. The majority and the dissent locked horns most fiercely over whether the Court’s decision was advisable as a practical matter. First, the dissent noted it was unclear which “analyst” a defendant would have the right to confront: The one who runs the test? The one who interprets the result? The one who calibrated the machine? The one who certifies the result? All four? Second, the dissent found it unlikely that analysts would testify differently at trial, or do anything more than provide a “rote recital of the written report.” The better rule would be to allow the defendant to challenge the accuracy of the test results by running his own tests and subpoenaing the analyst in the few cases where there was a legitimate dispute about the accuracy of the tests. Third, the dissent believed that the Court’s decision would overly burden analysts and the courts, and allow guilty defendants to go free on a technicality when an analyst was not available to testify. The majority questioned this “parade of horribles,” pointing to the many states that already give defendants an opportunity to cross-examine analysts, with no dire results. And the majority reiterated that practical considerations cannot be the touchstone for constitutional analysis: “The Confrontation Clause may make the prosecution of criminals more burdensome, but . . . we may not disregard it at our convenience.”
We’ve got one more Update to go, but I warn you now that I have not saved the best for last! If you’ve been waiting for the Court’s scintillating decision on the Tonnage Clause, though, the next Update’s for you.
Kim
