As commenters noted, last week's announcement that the Justice Department was suing the Fire Department of Austin, TX for racial/ethnic discrimination was evidence of a pre-arranged fix between the Obama Administration and the liberal city government to throw the case, rather than to let it go to courts where it might wind up a 5-4 Supreme Court decision cutting back disparate impact logic.
When the story broke, I couldn't find the DoJ's letter online, but now the firemen's union has posted it. It makes interesting reading in that it offers zero evidence for discrimination other than that using an objective test as one part of the three-part hiring process has "statistically significant" adverse impact on blacks and Latinos, and that hiring in top-down order based on the combined scores also has "statistically significant" adverse impact.
But who cares if this is a bizarrely bad case for the theory of disparate/adverse impact, if it will never be litigated? The DoJ letter spells it out:
"We understand that the City is interested in participating in settlement negotiations with the goal of resolving this matter without contested litigation."
My guess is that the octogenarian Ruth Bader Ginsburg will retire in 2015 or 2016 to make sure her replacement is appointed by Obama, giving the Democrats three relatively youthful Obama appointee votes. Perhaps Stephen Breyer, who will turn 78 in 2016, will take one for the team, too.
By the 2016 election, both Scalia and Kennedy will be 80, and Thomas's life expectancy doesn't appear all that hot. Chief Justice Roberts looks terrific, but has epilepsy.
So, if you are the Obama Administration, at present it makes sense just to pick rigged fights on adverse/disparate impact.