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Ricci: You Be the Grader
If usage spats make you salivate, let me know how you’d mark the following
eight sentences:
- Kennedy’s use of (1) “as” for “because” and (2) “this” as a remote
referent: “Eight lieutenant positions were vacant at the time of the
examination. As the rule of three operated, this meant that the top 10
candidates were eligible for an immediate promotion to lieutenant.”1
- Kennedy’s use of albeit: “In searching for a standard that strikes a more
appropriate balance, we note that this Court has considered cases similar to
this one, albeit in the context of the Equal Protection Clause of the
Fourteenth Amendment.”2
- Kennedy’s use of “thus upsetting” for a hypothetical situation: “But once
that process has been established and employers have made clear their
selection criteria, they may not then invalidate the test results, thus
upsetting the employee’s legitimate expectation not to be judged on the
basis of race.”3
- Kennedy’s omission of “that” after “clear”: “[T]he record makes clear
there is no support for the conclusion that respondents had an objective,
strong basis . . . .”4
- Ginsburg’s use of a nonrestrictive clause in this construction: “The Court
similarly fails to acknowledge the better tests used in other cities, which
have yielded less racially skewed outcomes.”5
- Ginsburg’s use of “anticipate”: “The Court’s order and opinion, I
anticipate, will not have staying power.”6
- Ginsburg’s use of quotation marks for terms of art: “But Congress
repudiated Wards Cove and reinstated the ‘business necessity’ rule
attended by a ‘manifest relationship’ requirement.”7
- Ginsburg’s use of a slash here: “[C]hanging the oral/ written weighting may
have violated Title VII’s prohibition on altering test scores.”8
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Ricci v. DeStefano (07-1428), 557 U.S. ___, 5-6 (2009).
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Id. at 22 (Kennedy).
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Id. at 25 (Kennedy).
- Id. at 26 (Kennedy).
- Id. at 2 (Ginsburg).
- Id.
- Id. at 30 (Ginsburg).
- Id. at 30 n.15 (Ginsburg).
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