White Firefighters Win, Sotomayor Loses
By a slim 5-4 margin, the Supreme Court ruled in favor of the white New Haven firefighters whose promotions were denied because not enough non-whites passed the promotion exam. Among those ruling the other way on the lower court was a certain wise Latina.
The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge. New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.
The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.
“Fear of litigation alone cannot justify an employer’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions,” Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.
In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.” Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday.
It’s worth noting that the Justice that Sotomayor would replace, Souter, ruled in the way she would reasonably have been expected to and that the outcome of this case would presumably have been the same were she on the Court.
On it’s face, however, Ginsburg’s dissenting opinion is absurd. The firefighters in question certainly had a right to be promoted under the extant rules of the game. Promotions were based partly on a test. They did well on the test and would have been promoted but for racial discrimination. The fact that fear, doubt, and uncertainty yielded a situation where nobody was promoted does not in any way mitigate the harm done to them.
UPDATE: Glenn Greenwald is right, here, methinks:
In light of today’s ruling, it’s a bit difficult — actually, impossible — for a rational person to argue that Sotomayor’s Ricci decision places her outside the judicial mainstream when: (a) she was affirming the decision of the federal district court judge; (b) she was joined in her decision by the two other Second Circuit judges who, along with her, comprised a unanimous panel; (c) a majority of Second Circuit judges refused to reverse that panel’s ruling; and now: (d) four out of the nine Supreme Court Justices — including the ones she is to replace — agree with her.
Put another way, 11 out of the 21 federal judges to rule on Ricci ruled as Sotomayor did. It’s perfectly reasonable to argue that she ruled erroneously, but it’s definitively unreasonable to claim that her Ricci ruling places her on some sort of judicial fringe.
Sotomayor is a fairly garden variety left-of-center judge. Ed Whelan makes the more reasonable argument against her: the nine Justices all agreed that the 2nd’s summary dismissal of the case was unwarranted.