I would note that Roger Clegg’s Center for Equal Opportunity made this argument to the Court in its amicus brief:
Thus, even if “avoiding disparate impact liability” were the sole motivation for defendants’ decision here[ to discard Ricci’s test results]. . . it would not be sufficient for defendants simply to show that they had a good faith belief that they might be sued, or even that they might be liable. To prevent such a defense from eroding Title VII’s core prohibition against intentional discrimination, defendants should be required to show a strong evidentiary basis for such a belief, much as they have to do under the Equal Protection Clause.
[. . .]
Any “avoiding disparate impact liability” defense recognized here should be similarly limited. That is, to be deemed a “nondiscriminatory rationale,” there must be more than just an employer’s good-faith belief that liability is possible, but strong evidence that it is so. Specifically, there should be evidence that there is a statistical disparity caused by an identifiable employer practice that is likely not defensible as job-related. Anything less would erode Title VII’s core prohibition against intentional discrimination.
The Court agreed with this argument.
One other note: not even the dissenters would have affirmed the Second Circuit’s “decision.” In that regard the Court repudiated not merely the decision but the jurisprudence — unanimously — of the judge who may be a new colleague.