The Ricci Decision: A Proposed Deal for Conservatives

If conservatives say that Sotomayor is unqualified because the Supreme Court overturned her, then they should call for John Roberts’ resignation.

The United States Supreme Court 5-4 has overruled a decision that Sotomayor joined, concerning affirmative action. Predictably, conservatives are already saying that this shows Sotomayor isn’t fit for the high bench.

So here’s the deal.

You might recall Hamdan v. Rumsfeld, a decision in which the high court ruled 5-4 that Bush’s military commissions and removal of habeas corpus was unconstitutional. That decision overruled an appeals court decision which John Roberts joined.

Obama will withdraw the Sotomayor nomination if Roberts resigns. Deal? It’s got to be, right? Right?

The more important point is that made decades ago by the great Justice Robert Jackson:

We are not final because we are infallible, but only infallible because we are final.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.