The interview is definitely worth a read, but I was very disappointed with Ginsburg's explanation of Ricci v DeStefano:
In an earlier post, I criticized Ginsburg's dissent in this case. But Ginsburg again misses the central problem with her argument. As I've explained:
Q: Can I bring up the Ricci case, brought by the New Haven firefighters?
JUSTICE GINSBURG: This case had some very hard elements. It was a bit like the Heller case, which involved the Second Amendment. [Last year, the Supreme Court found that Washington gun-control laws that barred handguns in private homes were unconstitutional.] For that, the plaintiff was a nice guy who was a security guard at the Federal Judicial Center, and he had to carry a gun on his job, but he couldn’t carry it home. And in Ricci, you have a dyslexic firefighter. Which is just exactly what you should do as a lawyer. I mean, that’s what I did.
Q: It’s true, it’s a very good strategy. He was a very sympathetic plaintiff. And it was important that the city had already given the test that the white firefighters scored high on and the black firefighters did not.
JUSTICE GINSBURG: Yes. And the city weights the written and oral parts of the test 60-40, and says: That’s what the union wanted, it’s been in the bargaining contracts for 20 years.
I don’t know how many cases there were, Title VII civil rights cases, where unions were responsible. The very first week that I was at Columbia, Jan Goodman, a lawyer in New York, called me and said, Do you know that Columbia has given layoff notices to 25 maids and not a single janitor? Columbia’s defense was the union contract, which was set up so that every maid would have to go before the newly hired janitor would get a layoff notice.
The question is whether the City vacated the results solely on the basis of disparate impact, without a legitimate belief that the test was flawed. Since they refused a technical evaluation of the test -- and in fact argued in district court that evidence of test validity is irrelevant -- it’s pretty clear that at the time they vacated the results, city officials did not have a legitimate belief that the test was flawed. They vacated the results simply because they got the wrong racial outcome. If city officials had looked at the imbalanced racial outcome, and then commissioned a technical review of the exam which found the test to be flawed, they would have been on more solid footing.The City did, of course, have a collective bargaining agreement with the New Haven firefighter's union that specified a 60-40 weighting for promotional exams. This weighting may have been arbitrary. Ginsburg can even argue that it was unfair.
But this is not the reason the results of the exam were vacated.