I agree that Sotomayor shouldn't be characterized as "outside the mainstream," particularly in light of the breakdown of the judges' votes as mentioned in the post. I just want to say that some people (me, for instance) object to race-based affirmative action but don't object to "legacy" affirmative action (or other preferences received by various people) for the simple reason that it's against the law to discriminate on the basis of race.

Thanks for your response. In fact, I do understand the difference between Title VII and affirmative action. I also understand that racial affirmative action is, in some instances, lawful. That doesn't mean that I can't believe (as I do) that racial affirmative action is facially contrary to Title VII's prohibition of race discrimination.

I also understand the Ricci decision (at least based on a quick read), and I agree with Scalia's concurrence that the real problem in the case is the disparate impact cause of action.

I won't reply to your suggestion that there must be some other (presumably bad-faith and likely racist) reason for me to have these views.

First of all, I don't know why you feel the need to insult me. You have no idea whether my understanding of the law is "superficial" or not.

Regarding your question, of course I care about policy considerations of what the law is and should be. I don't think that "legacy" considerations are fair at all. But there are a lot of things that aren't fair that also are not unlawful.

Title VII outlawed race discrimination in employment, among other things. My initial post was simply explaining why I view race-based decisions by employers to be different than decisions based on factors that aren't unlawful (even if those decisions may be more unfair and unprincipled than some race-based decisions).

Walfisch -- Whatever the other judges in the Second Circuit thought about the panel opinion had nothing to do with it being heard by the Supreme Court. It was heard by the Supreme Court because (a) Ricci appealed, and (b) the Court thought it addressed an issue worthy of review.

In fact, I think that Justice Scalia's concurrence best captures the real issues in the case, whichever way one decides them.

DCLaw1 -- I'm glad you meant no insult, and (as noted above) I agree that the issues in the Ricci case are nuanced. But I don't see any reason that I need to object to everything that I find unfair in life, simply so I can also point out what seems obvious to me -- that affirmative action, on its face, contradicts Title VII's prohibition against race discrimination. No matter how unfair "legacy" affirmative action may be, I don't see the relevance for a debate about whether or not affirmative action violates Title VII. Discrimination based on height is both unfair and real, too, but I'm not going to inject it into these sorts of debates.