“The war between disparate impact and equal protection will be waged sooner or later”

Wall Street Journal’s James Taranto analyzes the Supreme Court’s Ricci decision here.  Justice Scalia gets to the heart of the issue below. 
 

This is a very modest holding. It leaves the door open for permitting “intentional discrimination” in cases where there is
“a strong basis in evidence” for disparate-impact liability. By framing
the question as a conflict between statutory provisions, the court
avoids addressing the question of whether New Haven’s actions are
constitutional, as Justice Antonin Scalia notes in a lone concurring
opinion (citations omitted):

[The] resolution of this dispute merely postpones the evil
day on which the Court will have to confront the question: Whether, or
to what extent, are the disparate-impact provisions of Title VII of the
Civil Rights Act of 1964 consistent with the Constitution’s guarantee
of equal protection? . . .

The difficulty is this: Whether or not Title VII’s
disparate-treatment provisions forbid “remedial” race-based actions
when a disparate-impact violation would not otherwise result–the
question resolved by the Court today–it is clear that Title VII not
only permits but affirmatively requires such actions when a disparate-impact violation would
otherwise result. But if the Federal Government is prohibited from
discriminating on the basis of race, then surely it is also prohibited
from enacting laws mandating that third parties?e.g., employers,
whether private, State, or municipal–discriminate on the basis of
race. . . .

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.

Regarding the concept of judicial “empathy,” Taranto notes: 

Ginsburg opens her opinion by observing that “the white firefighters
who scored high on New Haven’s promotional exams understandably attract
this Court’s sympathy.” To which Alito replies:

“Sympathy” is not what petitioners have a right to demand.
What they have a right to demand is evenhanded enforcement of the
law–of Title VII’s prohibition against discrimination based on race.
And that is what, until today’s decision, has been denied them.

Presumably if the plaintiffs belonged to a group for which Ginsburg
had “empathy,” she would have been more inclined to rule in their
favor. “Sympathy,” by contrast, is an empty sentiment offered to
disfavored classes in lieu of equal protection. Such distinctions
between classes of people cannot be reconciled with equality under the
law. “Sympathy” is the new “separate but equal.”