She was one of three judges who agreed they should accept the lower courts well documented and reasoned decision in this case.

The two other judges, Judges Pooler and Sack, and Judge Sotomayor all agreed that they did not have anything to add to Judge Arternon’s decision so they issued a “per curiam” opinion which, in essence, adopted the lower court’s reasoning.

We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. Ricci v. DeStefano, 2006 U.S. Dist. LEXIS 73277, 2006 WL 2828419 (D.Conn., Sept. 28, 2006). In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.

The majority of the judges on the court of appeals voted to declined to hear the case en banc (the full panel of judges), Sotomayer was just one of the seven judges voting in favor of denying the en banc re-hearing…

http://lashawnbarber.com/wp-content/uploads/2009/01/06-4996-cv_opn2.pdf

This is what a lawyer had to say…

The attack on Judge Sotomayor from some on the Ricci case seems to focus on the fact that she and two other judges decided to dismiss the claim in a “per curiam” decision, rather than in a lengthy one. However, there are many reasons why a case might be decided in that fashion and to attribute and speculate as to the reasons it was used in the Ricci case seems to be reaching for an argument that might not otherwise exist. And regardless, there were many other judges in the Second Circuit who did not believe the case warranted any further decision either as determined by the en banc vote. Are all of them disqualified from serving on the Second Circuit too?

When you read about this case, it appears that based on the reasoning expressed in the decision was indeed sound…

http://www.scotuswiki.com/index.php?title=Ricci%2C_et_al._v._DeStefano%2C_et_al.

Basically the city was between a rock and a hard place and decided to do what they thought they were required to do in that situation. The courts have ruled that the city only did what was required, and did not second guess them in this instance. The U.S. Supreme court decision is still pending and we shall all see what the highest court in the land has to say on the matter before too long..

Mind you my comments on the firefighters case is based on 45 minutes of research…

They are saying that based on the clear text of the law this is the official determination on what it means. If they go too far the judgment will be struck down on appeal. If they don’t go far enough a future court case will expand the understanding of the law in question until it reaches perfect clarity.

A good example of this is with Software patents. Originally they were banned because they were abstract concepts. A court ruling said that they were indeed allowed because the software was ran on a machine. The negative affects lead to more challenges and eventually another court ruling said that the first court was wrong and they clarified the requirement that the involvement a physical transformation is required in order for the software item to be patentable.

Now the Supreme court is going to take a look at business process patents. How they will go on this is anyone’s guess. I think that again if the patent is abstract the law should not allow them.

Congress frequently passes laws without giving enough thought to the implication of their Legislation. That is why it’s the job of the courts to step in and say this is what the law said and this is how we apply it.

Until this time I have not offered my views on racial quotas. I think that there are places and times when they are likely still applicable. I think the determination factor should be was the system setup in a way to intentionally exclude racial minorities from participation. If so then yes quotas would be a way of resolving this injustice.

Was that the case with the situation you referenced? I have no idea. So I will reserve my judgment on the merits of that particular case.

However the founding fathers realized that a constitution fixed in stone would be unable adapt and change with the growth of the society it protected. The Constitution was written to be broad and flexible to accommodate for change in society over time.

1. To insert essential principles only; lest the operations of government should be clogged by rendering those provisions permanent and unalterable, which ought to be accommodated to times and events: and

2. To use simple and precise language, and general propositions, according to the example of the constitutions of the several states.”

This is a quote from Edmund Randolph’s statement in the preamble of the Committee of Detail at the Constitutional Convention. He is one of the Writers of the constitution. You can’t get much more direct on the question if the Constitution was written to be a living or a dead document that that.

“(The consitution)intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs.” – Justice John Marshall’s in McCulloch v. Maryland

Then we have Thomas Jefferson’s wisdom which I feel directly applies to your position.

I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors. – Thomas Jefferson

The quotes in this comment are from the English version of the Wikipedia but verified via other sources.

The reason all this matters is because it’s the job of the judiciary to interpret the constitution and laws. So they have to adapt and adjust the meanings, as the meaning changes to society as a whole.

Some people have taken to calling this judicial activism in an attempt to brand judges with a perjorative, but instead it is simply a result of the process of judges being judicial.

It is also not a judge’s responsibility to see that “justice” is done. It is their job to interpret and apply the law.

But that is exactly the job of a judge, to ensure that everyone who appears before him or her receives justice.

As such at times it is the responsibility of a judge to look beyond the words of the law to find true justice for the parties involved. What you describe is oppressive law.

This is what most people conceive as justice.

The upholding of what is just, especially fair treatment and due reward in accordance with honor, standards, or law.

Justice cannot exist without fundamental fairness.