What possible scenario could the Supreme Court have arrived at that would have prevented Glenn from writing this column?

SCOTUS could have reversed unanimously, ideally with one of the court liberals (Souter?) writing the opinion. The SCOTUS majority could have refrained from saying that this was a matter of unsettled law.

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.

As for Sotomayor, the Court's 5-4 decision today ought to put an end to the attempt to use Ricci to depict her as being somehow out of the judicial mainstream and thus unfit for the Court.

Somehow I think the lack of a normative qualifier in that sentence renders it rather hysterically overoptimistic. But we can hope.

The point should be raised about the dangers of reading too much into opinions written by judges on lower courts, who may not be ruling according to their own true view of the constitution but instead are bound by the precedents set at higher courts.

From the majority opinion of the Supreme Court:

"The racial adverse impact here was significant, andpetitioners do not dispute that the City was faced with aprima facie case of disparate-impact liability. On the captain exam, the pass rate for white candidates was 64percent but was 37.5 percent for both black and Hispanic candidates. On the lieutenant exam, the pass rate forwhite candidates was 58.1 percent; for black candidates,

31.6 percent; and for Hispanic candidates, 20 percent. The pass rates of minorities, which were approximately one-half the pass rates for white candidates, fall well below the80-percent standard set by the EEOC to implement the disparate-impact provision of Title VII. See 29 CFR §1607.4(D) (2008) (selection rate that is less than 80 per-cent “of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agen-cies as evidence of adverse impact”); Watson, 487 U. S., at 995–996, n. 3 (plurality opinion) (EEOC’s 80-percent standard is “a rule of thumb for the courts”)."

You're drowning.

Nonsense. I strongly disagree with Kennedy on his weighting of the percentage breakdown. It was a sample of 77 people, which is tiny. It's ridiculous to talk about detailed stat sets when you're dealing with a situation where if three or four guys didn't get a decent night's sleep because the baby was crying, or were stressed after arguing with their wives, or a hundred other reasons, it could be enough to significantly skew the racial percentages of passers and failers. The sample size is just too small.

For example, imagine a Gallup poll on Barack Obama's approval rating. The sample consists of 77 non-randomly selected interviewees. Is that an opinion poll you would take seriously?

Last week the Supreme Court vindicated Savana Redding's claim that she was unconstitutionally strip searched by middle school officials looking for prescription strength ibuprofen on her person. The Court ruled 8-1 that the search violated her fourth amendment rights. Justice Thomas alone considered it legal.

The vote was surprising given the banter heard from several of the male justices at oral argument. Some of their remarks came up short on empathy. However well they prepared for oral argument, putting their adolescence behind them evidently wasn't part of the drill. They came around, however, seeing the matter from the girl's point of view.

Previously, Judge Sotomayor dissented to a Second Circuit decision ruling there was nothing illegal in having two men strip naked in front jail guards on entering prison. One was being admitted for drunk driving, the other for violating a child support order. There was no reason to suspect either of concealing contraband. Sotomayor noted that the precedents did not permit this and that the circumstances of the search were not voluntary. She was alone in saying so, the sole dissenter.

Will she now get credit for extending her empathy across gender lines and for being ahead of the legal curve?

I seriously doubt it.

Nonsense. I strongly disagree with Kennedy on his weighting of the percentage breakdown.

So, in other words, you agreed with the outcome of the case without reading it, before the opinion was even delivered. Take off, Tool. :)

Nonsense. I strongly disagree with Kennedy on his weighting of the percentage breakdown. It was a sample of 77 people, which is tiny. It's ridiculous to talk about detailed stat sets when you're dealing with a situation where if three or four guys didn't get a decent night's sleep because the baby was crying, or were stressed after arguing with their wives, or a hundred other reasons, it could be enough to significantly skew the racial percentages of passers and failers. The sample size is just too small.

For example, imagine a Gallup poll on Barack Obama's approval rating. The sample consists of 77 non-randomly selected interviewees. Is that an opinion poll you would take seriously?

By all means, tell us how to design a test for implicit bias based on the information available, and how yours is better than the one they applied. Personally, I don't think you know what you're talking about.

The fact that it is now conventional wisdom in some circles that the only current victims of racism are white (usually white, Christian, straight and male) only demonstrates to me that affirmative action is more important than ever.