Monthly Archives: June 2010

Redefining America: Constitution and Leadership 2010 — Oil Spill #2

Podcast June 10, 2010, “Oil Spill #2”

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SupremePodcast.com — May 29, 2010

SupremePodcast.com

A weekly podcast review of U.S. Supreme Court decisions, grants of certiorari (cases accepted for review) and biographies of justices and nominees to the high Court.

May 29, 2010, Podcast

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Transcript of my May 29, 2010, SupremePodcast.com segment, Lewis v. Chicago:

Lewis v. City of Chicago, Ill.  Issued by the Supreme Court May 24, 2010

In a week when the 46 year old Civil Rights Act of 1964 was in the news –Tennessee Senate primary victor Rand Paul having questioned some of the Act’s provisions in articulating his philosophy of government overreach — the U.S. Supreme Court issued a unanimous opinion with respect to application of the Civil Rights Act to the City of Chicago and its fire department hiring practices.

The facts of the case are straightforward:  Chicago offered a test to 26,000 prospective firemen.  Those who achieved a score of 89 and above were marked “well qualified.”  Those who scored between 65 and 88 were deemed “qualified.”  Those below 65 were not qualified.  The city adopted this policy in 1995.  It further decided that only “well qualified” candidates would be hired first as needed.  It kept the files of “qualified” candidates in case all “well qualified” candidates were considered and additional positions were still available.

The city of Chicago continued to apply the same standard drawing from the original pool of “well qualified” candidates for six years, causing a number of potential “qualified” firemen not to be hired although it did select some qualified applicants in the end.

6000 African American candidates who had been rated qualified, but had not been hired, sued the city.

In the course of the litigation, the city stipulated, or accepted, the fact, that African Americans had been severely impacted in a way that was different than other racial groups by the 89-point cutoff.  This is called a severe disparate impact and is recognized by statute as a basis for challenging government hiring policies.  The Court of appeals referred to disparate-impact liability as “primarily intended to lighten plaintiff’s heavy burden of proving intentional discrimination after employers learned to cover their tracks.”

At trial the African American group of qualified candidates won their discrimination case.  The court ordered 132 of them to be hired by random selection from the class of 6000.   Back pay for what the 132 would have earned was awarded and was to be split among the other remaining candidates who were not hired.

The city appealed the trial court decision on the grounds that the applicants had not filed Equal Employment Opportunity Commission (EEOC) claims within 300 days of the test date.  The city argued that the statue required claims under Title 7 of the Civil Rights Act to be filed with the EEOC within 300 days of the violation of the law.  The city considered the discriminatory act to be when the test results were given, placing applicants into the “qualified” group, back in 1995. If the firemen failed to file a charge with the EEOC within 300 days, the city was entitled to consider the act lawful.  But the applicants argued that the policy was applied continuously over six years excluding them from advancing in the process and that the 300 day limit should be counted from each time the test results were used to determine which candidates would be called up for further consideration for open positions.

The 7th circuit reversed the trial court, finding the applicants’ claims were time barred.

The applicants petitioned the Supreme Court for review and in a decision written by justice Antonin Scalia the court unanimously reversed the 7th circuit.

The Court decided that in applying the same standard year after year to candidates who had originally “qualified” the city continued the violation such that the claims were filed in time.

The application of the policy had served to deny the firefighters’ opportunity.  The city could not hide behind the claim that their initial decision was all that counted for the purposes of starting the clock on timeliness.

The case was thus not in the Supreme Court on the merits of the discrimination claim and makes no substantive changes in the law on discrimination.  Those issues were decided in the trial court in favor of the fireman.  And the district or trial court decision, being a lower court, has little strength as precedent.  In fact, the Supreme Court sent the case back to the 7th circuit court of appeals on remand to make certain other determinations before final result would be known.

The case may be more significant for its dicta, which is the language and positions of the court not so central to its decision to become precedent but meaningful in expressing the court’s reasoning.  Justice Antonin Scalia used the case to forcefully articulate principles of judicial restraint.

“It is not for us to rewrite the statute so that it covers only what we think is necessary to achieve what we think Congress really intended.

Our charge is to give effect to the law Congress enacted.  Congress allowed claims to be brought against an employer who uses a practice that causes disparate impact, whatever the employer’s motives and whether or not he has employed the same practice in the past.  If that effect was unintended, it is a problem for Congress, not one that the federal courts can fix.”

While not surprising, the unanimity behind such a clear statement of judicial restraint illustrates the ascendance of such principles.

Arctic Oil Drilling Suspended

By Marc Seltzer; originally published May 27, 2010, at care2.com

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President Obama has stopped the permitting process for drilling in the Arctic.  In the wake of the BP Gulf oil spill disaster, the administration’s moratorium will be in place until the cause of the Gulf spill has been determined and new environmental rules are imposed.  (New York Times coverage of President’s announcement)

While a practical response to current oil spill, this may also aid the administration in pressing forward to develop a more sustainable energy policy.  President Obama campaigned for an end to excessive dependence on foreign oil.  This put him in favor of more offshore oil drilling, development of a new generation of nuclear power plants, as well as government support for new green technologies such as wind, solar and improved mileage standards for vehicles.  However, the President has not had universal support for green technology initiatives on the one hand, and has not gone far enough to address environmental concerns related to increased oil drilling, nuclear and climate change, on the other.

The U.S. populace is a reckless consumer of energy with little regard for the geopolitical or environmental consequences.  In contrast, Europe charges high gasoline taxes to discourage fossil fuel consumption.  Current legislation on climate change is a huge first step, but our nation needs bold leadership to move forward in energy policy, threading the needle of politically sound choices, management of limited resources and promotion of economic growth.

The President should seize the initiative during the moratorium period.  Of course, current dependence on oil, including foreign oil, cannot be changed overnight.  But developing policies that point in the right direction, towards sustainable energy with environmental safeguards should be the top priority goal of the administration.  We need fifty-year and 100-year plans.  The fact that technologies will change over time beyond our current understanding, does not alleviate our need to chart a responsible course now.

President Obama and the Democratic Congress face political challenge because of the economic downturn.  But that is looking backward.  Going forward, the Democrats should propose and campaign for transforming American energy policy.  Such a policy would clearly distinguish Democratic and Republican candidates in November.  It would offer international leadership above and beyond the tone of collaboration ushered in by Mr. Obama, and would begin the necessary public dialogue about a system for the use of resources and an accounting for damage to the environment that is appropriate for sustained progress and development.

The old model of environmental advocates lobbying for regulation of business served to pressure businesses to eliminate the worst of their pollution while businesses protected their profit potential.  However, what is needed now, is long-term, visionary policy that promotes green technologies, but also engages the public in the transformation from destructive consumption and development to sustainable management of the earth’s precious resources.

“You never want a serious crisis to go to waste,” Rahm Emanuel, Obama’s chief of staff, said just after the election.  A year later we have some significant progress in financial reform.

The Gulf oil rig tragedy has temporarily refocused attention on the dangers and mismanagement of energy policy.   Now is the time to act boldly!