Ricci: You Be the Grader

If usage spats make you salivate, let me know how you’d mark the following eight sentences:

  1. 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, thismeant that the top 10 candidates were eligible for an immediate promotion to lieutenant.”1
  2. 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
  3. 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
  4. 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
  5. 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
  6. Ginsburg’s use of “anticipate”: “The Court’s order and opinion, I anticipate, will not have staying power.”6
  7. Ginsburg’s use of quotation marks for terms of art: “But Congress repudiated Wards Coveand reinstated the ‘business necessity’ rule attended by a ‘manifest relationship’ requirement.”7
  8. 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


  1. Ricci v. DeStefano (07-1428), 557 U.S. ___, 5-6 (2009).
  2. Id. at 22 (Kennedy).
  3. Id. at 25 (Kennedy).
  4. Id. at 26 (Kennedy).
  5. Id. at 2 (Ginsburg).
  6. Id.
  7. Id. at 30 (Ginsburg).
  8. Id. at 30 n.15 (Ginsburg).

Order Point Made

Order Point Taken

Order Deal Struck