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.

FILED UNDER: Law and the Courts, Race and Politics, US Politics, , , , , , , , , ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Eric Florack says:

    Agreement, all points.
    Still, this is not going to help Sotomayor’s nomination case, in terms of public opinion, though it will certainly endear her to the Democrats in the Senate, who in the end don’t give a damn about public opinion this far away from an election.

  2. Michael says:

    The firefighters in question certainly had a right to be promoted under the extant rules of the game.

    There is the question about whether an exam in which no minorities passed may be unintentionally racially discriminating.

  3. James Joyner says:

    There is the question about whether an exam in which no minorities passed may be unintentionally racially discriminating.

    From further in the article cited: “Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.”

  4. Phil Smith says:

    There is the question about whether an exam in which no minorities passed may be unintentionally racially discriminating.

    I can understand the argument that a test can have underlying social assumptions that are revealed in lower tests scores for certain groups. But what sort of underlying social assumptions are there in a firefighters exam? Is there an ethnic way to fight fires?

  5. Michael says:

    From further in the article cited: “Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.”

    Wait a minute, so why is the result of the exam even an issue? What was keeping the black and Hispanic candidates who passed from getting promoted?

    I can understand the argument that a test can have underlying social assumptions that are revealed in lower tests scores for certain groups. But what sort of underlying social assumptions are there in a firefighters exam? Is there an ethnic way to fight fires?

    I have no idea, but I would assume the exam had more to do with the position of authority than extinguishing fires, so there certainly is an opportunity for it to happen.

  6. James Joyner says:

    Wait a minute, so why is the result of the exam even an issue? What was keeping the black and Hispanic candidates who passed from getting promoted?

    I think more people passed the exam than there were Lieutenant and Captain slots and the whites scored higher on the exam.

  7. John Burgess says:

    The Supreme Court’s decision remarks that the city had jumped through all the hoops to make sure the exam was ‘race neutral’. Its ruling was that because the city had been so fastidious, there were no grounds for a ‘disparate impact’ suit were those who scored highest to be promoted.

  8. KenJ says:

    http://forums.firehouse.com/archive/index.php/t-76909.html

    Some background info, for what its worth.

  9. Armando says:

    James:

    As I recall, you are not a lawyer and seem completely unfamiliar with Title VII law. The absurdity is the majority opinion.

    Justice Scalia’s concurrence was at least principled.

  10. Michael says:

    Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics.

    Hang on, 41 + 22 + 18 = 81, not 56. Either somebody has failed 1st grade math, or there are multi-ethnic candidates, in which case I have no idea what the actual pass/promotion statistics are.

  11. James Joyner says:

    As I recall, you are not a lawyer and seem completely unfamiliar with Title VII law. The absurdity is the majority opinion.

    IANAL. OTOH, I’m a PhD political scientist, have taken numerous graduate level classes in con law, and have taught con law at the undergraduate level. I’m not by any means an expert in Title VII but I’m pretty familiar with the Supreme Court level case law in that it’s a huge topic of interest to political scientists.

    This, from the majority opinion, puts it in a nutshell:

    Under Title VII, before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional, disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact li-
    ability if it fails to take the race-conscious, discriminatory action. The Court’s analysis begins with the premise that the City’s actions
    would violate Title VII’s disparate-treatment prohibition absent some valid defense. All the evidence demonstrates that the City rejected
    the test results because the higher scoring candidates were white. Without some other justification, this express, race-based decision-making is prohibited.

  12. James Joyner says:

    Hang on, 41 + 22 + 18 = 81, not 56. Either somebody has failed 1st grade math, or there are multi-ethnic candidates, in which case I have no idea what the actual pass/promotion statistics are.

    Heh. Here’s what it says in the Opinion:

    Seventy-seven candidates completed the lieutenant examination—43 whites, 19 blacks, and 15 Hispanics. Of those, 34 candidates passed—25 whites, 6 blacks, and 3 Hispanics. […] Forty-one candidates completed the captain examination—25 whites, 8 blacks, and 8 Hispanics. Of those, 22 candidates passed—16 whites, 3 blacks, and 3 Hispanics.

  13. Eric Florack says:

    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.

    Not so fast, Greenwald.

    I’m not convinced of this argument. read the ruling a bit more closely. In particularly, look at the footnotes of Ginsburg’s dissent:

    “Ordinarily, a remand for fresh consideration” (On the justifications for NewHaven to react) “would be in order.”

    Thing is, the majority didn’t see a need to remand, Ginsburg complains” “why, if final disposition by this Court is indeed appropriate, New Haven should be the prevailing party.”

    Short version: Even Ginburg doesn’t agree with the final disposition of the case, and both she and the other of the four who went with her, think Sotomayor, and the 2nd district court were wrong to have granted summary judgement to the city. The minority here, may like the leaning of the ruling, but it seems to me they’re not happy with the reasoning behind it as offered by Sotomayor.

    So, Greenwald’s claims seems (As is usual) out of line with reality.

  14. Eric Florack says:

    Heh. Apparently Whalen agrees. Interesting.

  15. PD Shaw says:

    As I recall, you are not a lawyer and seem completely unfamiliar with Title VII law. The absurdity is the majority opinion.

    That’s an argument from [er] lack of credentials. Why don’t you explain why you believe the majority opinion is absurd?

  16. Armando says:

    PD Shaw

    I wrote a number of posts on the subject at Talk Left. 3 today.

    James:

    Quoting Kennedy does not mean that he is right. the Congress creates the laws, or so I thought, not the SCOTUS. Kennedy rewrote Title VII law today.

  17. Eric Florack says:

    I note Jon Adler at Volokh essentially poking at the same flaw I noted Ginsberg complaining about, and enhances the point:

    On the other hand, the fact that it took the Court nearly 100 pages to resolve this question does cast a shadow over the Second Circuit panel’s handling of the case, and may raise questions about her judgment. Initially, the panel upon which Sotomayor sat was ready to dispose of the case with an unpublished, unsigned summary order. Whatever the reasons for this (and we’ve seen some speculation), it’s difficult to argue that this case was a simple no brainer of the sort that would justify that sort of resolution — and it’s difficult to square the justifications for this disposition with the panel’s subsequent decision to affirm the district court with a one paragraph, precedential opinion. The length of the Supreme Court’s opinions (a 34-page majority, 39-page dissent, and two concurrences) is evidence that the case raised difficult and weighty issues. It reinforces the position of Judge Sotomayor’s colleagues who criticized the panel’s initial disposition and, on their own initiative (and without the filing of a petition for rehearing en banc), sought full court review of the case.

    It seems to me this speaks to Sotomayor’s qualifications for the role on the USSC… or the lack thereof. Not that I think it’ll stop her being confirmed, given the makeup of the senate at the moment.

  18. James Joyner says:

    I wrote a number of posts on the subject at Talk Left. 3 today.

    The ones I’ve seen, including the linked one back to Jun 8, are all very cursory, essentially saying what you say here:

    Quoting Kennedy does not mean that he is right. the Congress creates the laws, or so I thought, not the SCOTUS. Kennedy rewrote Title VII law today.

    As I understand your argument, you’re saying that CRA1991 puts the burden of proof on the employer to prove that they’re not discriminating when there’s a disparate impact. But no aggrieved minorities sued, as the employer preemptively engaged in reverse discrimination. The plaintiffs are white and aren’t alleging disparate impact.

  19. KenJ says:

    Forget the link I posted earlier. It’s completely off topic.

  20. Derrick says:

    Still, this is not going to help Sotomayor’s nomination case, in terms of public opinion, though it will certainly endear her to the Democrats in the Senate, who in the end don’t give a damn about public opinion this far away from an election.

    Sotomayor is doing just fine in terms of public opinion, contrary to your misguided opinion.

  21. Eric Florack says:

    Unless you are suggesting that the poll you cite was taken after this USSC ruling was annouced, I strongly suggest you re-read my statement and re-evaluate it’s import. You’re engaging in a knee-jerk defense against something that’s not there.

  22. Armando says:

    James:

    The issue in THIS CASE, the Ricci case, was whether attempting to comply with Title VII, as New Haven was, could lead to liability under, absurdly, Title VII.

    Justice Kennedy, and you apparently, believe that answering YES to that question is a logical result.

    Your problem, as is the Court’s, is with the law itself. Rather than deal with that fact, you argue nothing to the point.

    Unless we read Ricci as overruling Griggs AND striking down the 1991 amendments to Title VII, which you seem to do, then Kennedy’s opinion is ridiculous.

    If in fact the SCOTUS is striking down the 1991 Amendments to Title VII, this is naked judicial activism, which, I once thought, conservatives argued they abhorred. I never believed it of course but they did argue it.

    Now consider this – what if Congress says, no, Kennedy misunderstood Title VII and we are fixing it now by amending the law and overturning Ricci (as the Congress did after a similar decision by the SCOTUS in Wards Cove.) What will you say then?

    What Scalia said today – “disparate impact” (and thus the 1991 Amendments to Title VII) are unconstitutional has some principled consistency.

    It is what Kennedy did in fact, by the back door.

    That is why I prefer Scalia’s concurrence. It is much more honest in its judicial activism.

  23. James Joyner says:

    Armando,

    I don’t think the Court is intending to strike down the concept of disparate impact. Rather, it’s saying New Haven vastly overreached in trying to avoid it given that they took extraordinary measures ahead of time in vetting the test, even having it made by an outside agency.

  24. Armando says:

    James:

    If that is what the Court decided, then it should have remanded for more fact finding.

    The record simply does not support your assertion or Kennedy’s, imo.

    It is one thing to say New Haven was not entitled to summary judgment on this record, it is another to grant summary judgment to the plaintiffs on this record.

  25. PD Shaw says:

    Armando:

    I wrote a number of posts on the subject at Talk Left. 3 today.

    Thank you, I didn’t recognize that you were Big Tent Democrat; otherwise I would have known where to look. It just seems like you had something to say and weren’t saying it.

    I’ll read it all later today.

  26. PD Shaw says:

    If in fact the SCOTUS is striking down the 1991 Amendments to Title VII, this is naked judicial activism, which, I once thought, conservatives argued they abhorred.

    I don’t know which definition of judicial activism, you’re using, but I don’t believe conservatives are opposed to Marbury v. Madison, or the notion that a Court might strike down a law that contradicts Constitutional limitations. I don’t believe conservatives feel that the Constitution contains no limitations on race.

  27. Armando says:

    PD Shaw:

    Ricci is not decided based on any constitutional principles. It is decided asa matter of statutory interpretation.

    It does seem easy to miss that given that Kennedy ignored every precept of statutory interpretation in the book.

  28. Al Bullock says:

    Thirty years ago I was told by a friend in another office, “We must hire a black next vacancy”.In or out of the f3Federal government discrimination does not disappear but lies dormant until the need arises.

  29. PD Shaw says:

    It is decided asa matter of statutory interpretation. It does seem easy to miss that given that Kennedy ignored every precept of statutory interpretation in the book.

    I always thought it was a precept of statutory interpretation that a statute would be interpreted in a narrow fasion to avoid being held unconstitutional where possible.

  30. Eric Florack says:

    To Armando and PD:

    Ricci is not decided based on any constitutional principles. It is decided asa matter of statutory interpretation.

    Correct, it was not. This is a point made clear by the comments of Justice Roberts. Roberts however, goes on to suggest the law in question runs directly afoul of the 14th amendment, and a day of reckoning is coming on that point.