Ricci v. DeStefano: Procedural Activism(?)

National Black Law Journal (University of California, Los Angeles), Vol. 24, 2011

Seattle University School of Law Research Paper No. 11-01

16 Pages Posted: 25 Jan 2011

Date Written: January 24, 2011


This Essay analyzes the Supreme Court’s Ricci v. DeStefano decision. The majority Justices – Roberts, Alito, Scalia, Thomas and Kennedy – imposed a legal burden upon the City of New Haven which had never before been applied in Title VII cases, nor argued in the lower tribunals of the immediate case. Despite those circumstances, and the fact that the matter was before the Court on cross-motions for summary judgment, the majority refused to remand to the case to the trial court under that heightened standard, and held that the City violated Title VII of the Civil Rights Act because it could not demonstrate its Civil Service Board had a “strong basis in evidence” to reject the firefighter examination results. In doing so, the majority justices, reputedly more aligned with the Bickelian philosophy of exhibiting passive virtues, threw judicial minimalism out the window.

This Essay also examines Justice Alito’s concurrence and contends that it too betrays tenets of judicial minimalism. In his zeal to construct a narrative that the White firefighters were victims of unbridled African-American political power, Justice Alito builds his opinion upon foundations of hearsay, hearsay upon hearsay, opinion, and unverified statements – evidence that could neither properly be considered under summary judgment rules nor, in their established form, have reached a jury. This Essay concludes that the majority and concurring justices engaged in procedural activism by sidestepping remand doctrine and evidentiary rules, and ignored the import of affirmative candor as it regards principles of procedure.

Keywords: civil procedure, civil rights, discrimination, race, Supreme Court

Suggested Citation

Adamson, Bryan L., Ricci v. DeStefano: Procedural Activism(?) (January 24, 2011). National Black Law Journal (University of California, Los Angeles), Vol. 24, 2011; Seattle University School of Law Research Paper No. 11-01. Available at SSRN: https://ssrn.com/abstract=1747178

Bryan L. Adamson (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA n/a 98122-1090
United States

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