Saying that the city simply "threw out the test results because the higher scoring candidates were white" is not exactly correct.

Makes a helluva lede, though, don't it?

Three of the Justices in the majority went to law school after the 1967 Supreme Court decision Abbott Laboratories v. Gardner, which clarified the ripeness doctrine this way: "...its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration."

Justice Ginsberg, in dissent, has the compelling point: No one has received promotions in preference to them.

If nothing else, can Ricci finally make conservatives stop falsely claiming that they do not legislate from the bench? Ricci, in reality, failed the ripeness test. Conservative claims about not legislating from the bench fail the laugh test.

This is rather fine parsing of the facts. The city threw out the tests because they were afraid of getting sued...because the higher scoring candidates were white. All you've done is add an intervening step. The root cause of throwing out the test remains the fact that the high-scoring candidates were white.

I'd like Sotomayor confirmed, but I've disagreed with this ruling from the start.

We're all missing the point. The city didn't throw out the test because they feared getting sued. The city threw out the test because they concluded that the tests violated Title VII and they knew they were going to get sued.

But that's how lawsuits work. If I wrote a test say minorities need not apply and then my legal department concluded the test were discriminatory. What would I do? Throw out the tests because I knew I would get sued for violating Title VII

The salient point that Citizen Polthereal and the five Justices both ignore is that - although you may disagree with the lower court ruling from the start - this action by New Haven's CSB did not have a finish. That is not a parsing, just the facts.

There was no evidence that the City would have faced a suit by black firefighters if the had accepted the results, the city was just using the possible threat of a lawsuit to run for cover. True, no one received proportions in preference to the whites but does that mean the the city will never promote again until someone the right color scores high enough?

Gosh, I can't imagine why a city might be completely skittish about using a written test to justify denying black people promotions while promoting white people. Especially for a job like firefighting where, unlike accounting, your relevant skills are really easily captured by a test.

Certainly in America there's no history of "objective" tests being misused for racist reasons. Yep, it's never happened at the polls or anything.

And certainly there's no history of fire departments looking for flimsy pretexts to deny people of color a fair chance.

I also think it's pathetic that white people think this is "reverse racism." It's not. It's part and parcel of our country working through the damage that centuries of racism have done to it.

I mean, it would be great if we could see a situation where everyone in charge was one color and all the people not in charge were another color and assume that it was a fair process that got each of them there and it's just a statistical fluke that they ended up where they are. You see that with left-handers and right-handers: nobody really thinks it's a sign of discrimination that we have so many lefty presidents.

But race isn't like that. When we see screwy distributions, we can't give ourselves the benefit of the doubt. Our history doesn't allow us to assume that.

It's not fair to anybody. But it is how you get to the place that's fair to everybody.

There was no evidence that the City would have faced a suit by black firefighters if the had accepted the results, the city was just using the possible threat of a lawsuit to run for cover. True, no one received proportions in preference to the whites but does that mean the the city will never promote again until someone the right color scores high enough?

Scott, if you had read the Court's opinion, Ginsburg specifically points out that the Black firefighter's group was gearing up to sue in case the scores were certified.

As for your second point, the possibility for future equality doesn't justify present discrimination. That being said, the promotion tests would've likely been retained if the city didn't feel it violated Title VII