In 2009, the Supreme Court decided Ricci v. DeStefano. The Justices reversed Judge Sonia Sotomayor's indefensible ruling against the Frank Ricci and the other firefighters. But the Court stopped short of deciding whether New Haven's attempt to avoid liability for disparate impact violated the Equal Protection Clause. Justice Scalia concurred to explain the Court was merely postponing the inevitable question:
But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.
Nearly two decades later, with a very different Supreme Court, this question is now primed for resolution.
