Fighting Fire

So the right-wing talking point is that all nine Supreme Court justices agreed that summary judgment was inappropriate in the district court in the Ricci case. (Too lazy to link.) This talking point is based on a footnote in the Ginsburg dissent, so I'm not sure how much weight I would give that (the footnote--I know how much to give the talking point). And the footnote is couched in conditional terms. So, again, it's reading a lot into the text . . . of a footnote.

OK. Let's assume that nine justices of the Supreme Court disagreed with the district court's grant of summary judgment in this case. Let's.

So what? There is good reason to think that summary judgment is used with a relatively high frequency in employment discrimination cases--like this case. There was a report by the Federal Judicial Center (Cecil and Cort 2008) on summary judgment, and the authors found that summary judgment was very common in employment cases.

Not a surprise, really. Summary judgment is how the lower courts have determined to resolve employment cases. For the non-lawyers, summary judgment is a pretrial motion by which one party (or both parties) assert that, based on the undisputed facts established through discovery (depositions, document production, etc.), that they are entitled to judgment as a matter of law. Because a jury is empaneled to determine facts, and the facts--at least the important ones--are not disputed, then no trial is necessary. The moving party--usually the defendant--says, in essence: "There are no factual disputes, and I win on the law."

But there is a sense that lower courts have started granting summary judgment even where there is a factual dispute, but where the likelihood of a jury finding for the plaintiff is low.

Don't believe me? Then ask Judge Posner. (I know I cite Posner a lot, but when it comes to empirical matters, as opposed to normative matters, he is someone interested in evidence. His normative conclusions, I generally don't agree with.) Posner, in the revised edition of his Federal Courts book, suggests that the district courts, with the acquiescence of the courts of appeals, have relaxed the standard for summary judgment.

My guess is that this is particularly true in employment discrimination cases.

Why? Well, think of an employment discrimination case where the plaintiff has a great case. Exemplary (at least spotless) work record, no write-ups, etc. But s/he is black, or female, and gets fired, passed over for promotion, etc. Does this case get very far in district court? No, because there isn't a plausible non-discriminatory justification for the employment decision, as a result, the employer settles. The case, if filed, doesn't get to summary judgment.

Think of an employment discrimination case where the defendant has a great case. Employee has a bad record. That employee has trouble finding an attorney. If it's not filed, it never goes anywhere. (Duh.) This is not to say that those cases don't get filed, or even settled. It is to say that truly bad cases are relatively rare.

The case in the middle is the problem. Employee has a mixed record. Some bad history, but not necessarily more than other, similarly situated employees. Employee happens to be black, Hispanic, a woman. Fired, or denied promotion. Plaintiff can make out a prima facie case, defendant can offer a non-discriminatory justification . . . .

What's the district judge to do? S/he can deny summary judgment (almost always for the employer/defendant) and try the case. But in most such cases, the defendant will win a close case at trial. And it takes a lot of time and energy to try a case. There's so much on the docket--all of which will have to wait if s/he tries the case. So . . . the district court grants summary judgment. Even if there is a dispute of material fact. Based on the weight of the evidence.

The trick here is that the court of appeals gets to decide whether there is a trial. If the plaintiff thinks s/he has a strong enough case, s/he can appeal. If s/he does, then she might win on appeal. If the appellate court says, "Reversed. Error to grant SJ," then the plaintiff (usually) gets a trial. In theory, close enough cases will settle on the appeal. The district court never sees them again.

Now, it's hardly surprising that the Supreme Court would have a problem with what is essentially the lower courts' bending of the rules to suit their workload needs. Because what is probably the SOP in lower courts is not Hoyle, if you get my drift.

Indeed, it is probably the case that the Supreme Court would find error in many, many employment discrimination cases in which summary judgment was granted--if it took those cases. Which it generally does not. The Supreme Court is not in the business of error correction, for the most part. So it doesn't take these cases. Mostly.

This case was a little different--at the Supreme Court level, where affirmative action is a hot issue. But my guess is that, at the trial and appellate level, this just looked like another employment discrimination case--one where the court grants summary judgment, and the appellate panel affirms. That's most of 'em, people. That's how these things get done.

So one way to understand Ricci is that the lower courts, in one instance, got busted for something that they have been doing--according to Posner--for a long, long time. What we have here, is, failure to understand the context. Even if that footnote, in a dissent, written in conditional language, can be given the import that some folks have tried to give it.

Also: Needless to say (again), summary judgment in these cases is almost always granted to the defendant (the employer)--like a municipality. And probably equally needless to say, but I will, that one side of the aisle prefers when employers win employment discrimination cases, more often than not. So take a run-of-the-mill employment discrimination case, and have the Court grant cert--I know, why?--and see how the votes break down. Affirmative action makes for a strange employment discrimination case issue, IOW.