SCOTUS overrules Sotomayor on Ricci

posted at 10:42 am on June 29, 2009 by Ed Morrissey

The nomination of Sonia Sotomayor had begun to recede in the public imagination, with many Americans supporting Barack Obama’s privilege in picking qualified judges for the bench.  That may take a big hit after today, when the other shoe finally dropped on Obama’s first Supreme Court selection.  In a 5-4 decision, the existing Supreme Court sent a welcome note to its latest hopeful by overturning her decision on a claim of racial discrimination in Connecticut:

The Supreme Court has ruled 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.

The decision can be read here.  Perhaps unsurprisingly, the court split along its usual ideological lines, with Anthony Kennedy again providing the swing vote.  Kennedy wrote the opinion, while Antonin Scalia wrote a concurrence.  Kennedy argues that the lower court failed to establish that the defendants met the standards necessary to discard the tests, that the failure amounted to a violation of Title VII of the Civil Rights Act, and that the lower court therefore improperly applied the Equal Protection Clause:

We conclude that race-based action like the City’s in thiscase is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard. As a result, the City’s action in discarding the tests was a violation of Title VII. In light of our ruling under thestatutes, we need not reach the question whether respon-dents’ actions may have violated the Equal Protection Clause. …

In other words, there is no evidence —let alone the required strong basis in evidence—that the tests were flawed because they were not job-related or because other, equally valid and less discriminatory tests were available to the City. 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. The City’s discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim.

Scalia’s concurrence asks the question: when will we finally set aside the issues of racial quotas altogether and rely entirely on the 14th Amendment?   And Samuel Alito writes another concurrence to address what he says were calculated omissions from the dissenters — a claim that surely will rankle during the summer recess of the court:

I join the Court’s opinion in full. I write separately only because the dissent, while claiming that “[t]he Court’srecitation of the facts leaves out important parts of the story,” post, at 2 (opinion of GINSBURG, J.), provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam. The dissent’s omissions are important because, when all of the evidence in the record is taken into account, it is clear that, even if the legal analysis in Parts II and III–A of the dissent were accepted, affirmance of the decision below is untenable.

This creates a big problem for Obama and the Democrats in Congress.  They certainly have the votes to confirm Sotomayor, but their big sell — that she was one of the appellate court’s most brilliant minds — just took a body blow on this decision.  Most people want to move past the old arguments on race and hiring, feeling that forty years of affirmative-action policies have run their course.  Having to defend a jurist who attempted to impose them in a court case will not make Sotomayor seem moderate or reasonable at all, but extreme and perhaps less than competent.

Ironically, the Democrats have pushed for an earlier confirmation hearing, as soon as mid-July, while Republicans wanted a September date.  I suspect the two may switch sides now, with the GOP wanting to hold the hearings in the wake of Sotomayor’s high-profile reversal, and Democrats perhaps hoping that other stories will eclipse it.  Regardless of when this confirmation hearing takes place, expect Ricci to play a central part in the questioning.

Update: Alito wrote the concurrence that scolded the dissent, not Roberts.  Thanks to HA reader Chris A for the pointer.

Update II: Jazz Shaw focuses mainly on the decision itself, and what it means:

We’ve made tremendous progress in this country in terms of obtaining equality for traditionally opressed groups. Unfortunately, we have inherited blind spots where the pendulum of justice has swung far past equity and into the same wrongs coming from the other direction. And today’s decision demonstrates that we continue to have powerful and influential members of the judicial system who are more than happy to have these disparities remain in the name of making sure that no person can ever accuse us of bias against minority groups ever again.

Good point, but Jazz misses an obvious conclusion.  Cui bono?  Keeping this pendulum on the side of intervention allows the courts to dictate policy, which is what the dissent wants to keep alive.  I see this as turf protection more than an ideological issue, which the 5-4 split will mostly hide.

Jazz also thinks that the Sotomayor confirmation is a done deal, and he’s probably right.  However, this will give momentum to those who want to fight it, and it certainly gives Republicans an opportunity to paint Sotomayor and the Obama administration as extremist on these policies.


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reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

Really? Did Sonia Sotomayor endorse a decision, or did she make the decision?

If she endorsed the decision, who made it?

Not a huge deal, but it’s good to recognize the subtle way the Associated Press tries to make it appear Sotomayor was not slapped down, thoroughly and decisively.

Thin skinned all around.

jeff_from_mpls on June 29, 2009 at 1:28 PM

The 60% figure isn’t quite right. Three of Five of her rulings that made it to a higher court have been overturned. She’s made hundreds of rulings that were never even appealed. What we don’t know is how that compares to other SCOTUS nominees.

TheUnrepentantGeek on June 29, 2009 at 1:28 PM

I have lived in Tennessee since 1980 and I have never seen a ‘colored only’ sign. I am not from TN, my father was in the Army; we were not brought up to be racist.

The only racism I have seen (living in TN) is against white people. I have on a few occaisions heard older people use the awful ‘N’ word, but the attitude and racial slurs from black people toward whites are very frequent, very loud.

TN Mom on June 29, 2009 at 12:26 PM

During the 50′s I lived for a while in the South (Tenn. Fla. and Virginia). I saw the “colored only” signs and witnessed first hand all of the ugly aspects of institutionalized racism. Far too large a percentage of the people who were born and raised there truly believed that blacks were an inferior race. They believed this almost religiously and at that time (before the changes of the 60′s) automatically assumed if you were white, you agreed with them.
This was just a little more than 50 years ago. The changes brought about during the 60′s did not change things over night and although the situation is now very much different in a legal sense,have the minds and attitudes of the people there changed that much? During the late 80′s I again spent some time in the south (rural Virginia). People of my age apparently hadn’t changed one bit. They ‘indoctrinated’ their children, the children parrot their parents and in turn are indoctrinating their children.
Achieving change amongst the bigoted will take many generations and to suppose that because we now have laws against racism,it no longer exists,is akin to wearing a blindfold.
Compare the attitudes of Irish descendants to the English,the above description of generations of families I met in the south, then you will start to appreciate why many blacks still do not trust whites. The people involved are taught the beliefs of their parents. If you have been brought up to feel you can’t trust certain others,then no law will ever change that. Only life experiences that contrast those teachings will cause you to moderate. Positive experiences in turn will make you less likely to pass on the heaviest of your parents feelings.
All this is background to a point I wish to make. Some things cannot be forced on people, they need time for the natural course of events to alter peoples beliefs.
Sotomayor apparently feels that the institutionalized racism of the past, justifies practicing racism today against people whose only crime is being of the wrong color. Sotomayor, by her own admission, is influenced by her ethnic background. By itself this does not disqualify her but, the inability to temper ones beliefs while interpreting law would.
A judge at any level,let alone the Supreme Court of the United States,must be aware of their human failings and take that into account while making decisions. Sotomayor does not do this. I believe this disqualifies her.

oldernwiser on June 29, 2009 at 1:43 PM

A judge at any level,let alone the Supreme Court of the United States,must be aware of their human failings and take that into account while making decisions. Sotomayor does not do this. I believe this disqualifies her.

oldernwiser on June 29, 2009 at 1:43 PM

I recall an anecdote from Richard Kluger’s history of Brown v. Board, Simple Justice. The Chief Justice very much wanted an unanimous, one-opinion decision. One of the associate justices (can’t remember which), was a Southerner, and was concerned with the implications of beginning to tear down segregation, and asked the CJ something like, “You mean some black buck could sit down in a restaurant next to Mrs. Associate”? (Don’t recall what the answer was, but I’d think, “Yes, if he can afford to eat in the places you do” would have been apt.) Warren still got his vote in the end.

Hugo Black’s old KKK animus towards the Catholic Church is subtly present in the separation of church and state education cases, though.

So some can rise above their backgrounds and struggle to overcome failings, and some can’t.

Wethal on June 29, 2009 at 1:55 PM

Ginsburg wrote in her dissent:

This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place.

What??? How on earth could their selection process have been more racially neutral? It’s not like they just let 5 WASPS make the decision. They hired a company with national experience, who got a group of fire chiefs together to examine the questions, an overabundance of minorities. They included an oral presentation that was judged by a panel of 1 white, 1 black, and 1 hispanic panelist.

hawksruleva on June 29, 2009 at 2:10 PM

What’s that supposed to mean Ruth?

It mean she doesn’t think anyone’s rights have been violated, since no one was promoted ahead of the white officers. That is, just because they scored better than any minority players, there was no harm done b/c no one was promoted. She is not even touching what Soto concluded.

gonnjos on June 29, 2009 at 2:10 PM

Lady La Raza was not properly vetted by the Obama Crime Regime.

Geochelone on June 29, 2009 at 2:28 PM

From Alito’s concurrence, a great insight into the world of politics. New Haven’s Mayor’s office wanted the results thrown out. So, going into a meeting with the Civil Service Board, they told the CSB:

“I wanted to make sure we are all on the same pagefor this meeting tomorrow. . . . [L]et’s remember, that these folks are not against certification yet. So we can’t go in and tell them that is our position; we have to deliberate and arrive there as the fairest and most cogent outcome.” Ibid.

hawksruleva on June 29, 2009 at 2:35 PM

That is, just because they scored better than any minority players, there was no harm done b/c no one was promoted. She is not even touching what Soto concluded.

gonnjos on June 29, 2009 at 2:10 PM

More to the point, it leaves the door open for governments to keep throwing out their promotion systems until they get the right people at the top of the list. That is no less racist than when the same systems discriminated against minorities.

Had New Haven decided to throw out the test because too many blacks were to be promoted Al Sharpton, Jesse Jackson, and every other member of the race industry would be marching on the city and demanding reparations and calling for boycotts. It is easy to see why a racist like Sotamayor doesn’t understand justice. She should be attacked on her views with all guns blazing but, sadly, the GOP Senators will not even challenge her.

highhopes on June 29, 2009 at 3:10 PM

Everywhere I turn I see racism within the minority communities in this country. It is supported, expected, and accepted by their cultures. While I refuse to degenerate into racism myself by treating everyone as an individual regardless of their race, to ignore the overt and obvious racism directed against whites (especially white men) would be akin to burying my head in the sand.

cjk on June 29, 2009 at 3:39 PM

Time for a VERY LOUD, VERY LONG identity politics debate…?

bigjack on June 29, 2009 at 3:44 PM

This woman is a worthless hack, it is tyranny to place this jackass in a position where she has influence over our lives.

NoDonkey on June 29, 2009 at 3:50 PM

The second link in the first paragraph is broken. Looks like some extra characters in the url:

http://http//apnews.myway.com/article/20090629/D994CJI81.html

should be -

http://apnews.myway.com/article/20090629/D994CJI81.html

-

deesine on June 29, 2009 at 4:05 PM

None of this matters.
This racist, socialist LaRaza pig is STILL going to be confirmed.
She’s gonna squeeze her big fat ass into one of those thrones and get real comfy. She’ll be there FOR EVER.
LEGISLATING FROM THE BENCH.

I am sickened by everything this administration has done to my country.

Artifact67 on June 29, 2009 at 4:09 PM

Mediocrity

Dr Evil on June 29, 2009 at 5:11 PM

Everywhere I turn I see racism within the minority communities in this country. It is supported, expected, and accepted by their cultures. While I refuse to degenerate into racism myself by treating everyone as an individual regardless of their race, to ignore the overt and obvious racism directed against whites (especially white men) would be akin to burying my head in the sand.

cjk on June 29, 2009 at 3:39 PM

I think if you were to look through clear eyes, you will see racism on all sides. No law will ever change the way people think. The trick is to make law that protects everyone from being treated differently. No matter what the reason,under law there must be zero discrimination and zero preferential treatment.

oldernwiser on June 29, 2009 at 5:12 PM

We’ve just entered the Twilight Zone:
http://www.breitbart.com/article.php?id=D994HS400&show_article=1#idc-ctools

s11wonder on June 29, 2009 at 5:20 PM

If you read through clear eyes you would understand that I never said that there’s no racism among whites, just that it is: “within the minority communities in this country.” …and ….”supported, expected, and accepted by their cultures”……Also, “to ignore the overt and obvious racism directed against whites (especially white men) would be akin to burying my head in the sand.”…..I don’t need any lessons from any liberal truth twisters.

cjk on June 29, 2009 at 5:25 PM

Also to equate the level of racism among minorities to the level among whites is like equating the tenets of Christianity with mohammedanism.

cjk on June 29, 2009 at 5:27 PM

If you’ll re-read my post, the the level of racism between groups wasn’t the point. Pay attention to the last two sentences

oldernwiser on June 29, 2009 at 5:31 PM

I just got home, from participating in a jury pool. I didn’t get picked, and am a lil burned out right now. It’s hot, late, and I spent the day in a court room. THUD lol

However…I will respond with…Yippee!!! For the obvious conclusion, that should have been the response of the first court, this case hit.

And shame on those justices, who voted for this, for obvious political reasons. If we don’t start judging, and grading, and basing things on an equal basis in this country, and not because of heritage, or skin color, we’ll never ever walk away from racism. Since when do civil rights only apply to anyone, unless you’re white?

capejasmine on June 29, 2009 at 5:46 PM

You are making up numbers which can’t be verified, like Obama has saved 1.8 million jobs.
What is known is that she has a high reversal rate for the cases heard by the SCOTUS.

gonnjos on June 29, 2009 at 1:18 PM

It’s not a high reversal rate. The Supreme Court overturns approximately 75% of the cases it hears, so 60% is better than average.

The Supreme Court only takes cases that it has a good chance of overturning, so 3 out of 5 simply does not have much meaning as a fraction in the first place. It means that of the 5 Sotomayor decisions that the Supreme Court thought it had a good chance of overturning it actually overturned 3. And that’s around or below the usual rate. It certainly does not mean that they disagreed with her 60% of the time.

Finally, a Supreme Court reversal does not mean that you are wrong; it simply means that the majority of the Supreme Court disagrees with you (actually, even that’s not true). So, for example, when O’Connor was still a Justice, had Scalia or Thomas been Circuit judges, many of their decisions would have been overturned by the Supreme Court because there were at least 5 Justices who disagreed with them ideologically. I assume that you don’t think this means that they would have been wrong in those cases. It just means that the ideological makeup of the Court was such that they would have been reversed.

These arguments, though quite obvious, are made here in case you want to read more: http://www.usnews.com/blogs/robert-schlesinger/2009/05/28/the-myth-of-sotomayors-60-percent-supreme-court-reversal-rate.html.

tneloms on June 29, 2009 at 5:51 PM

Really? Did Sonia Sotomayor endorse a decision, or did she make the decision?

If she endorsed the decision, who made it?

Not a huge deal, but it’s good to recognize the subtle way the Associated Press tries to make it appear Sotomayor was not slapped down, thoroughly and decisively.

jeff_from_mpls on June 29, 2009 at 1:28 PM

The lower court made the decision, and she and her colleagues affirmed it. This is an accurate way to reporting it. Actually, it was specifically her lack of issuing a binding decision initially that earned her a lot a criticism, which seems to be well-deserved.

tneloms on June 29, 2009 at 5:54 PM

This creates a big problem for Obama and the Democrats in Congress. They certainly have the votes to confirm Sotomayor, but their big sell — that she was one of the appellate court’s most brilliant minds — just took a body blow on this decision.

I couldn’t disagree more. This 5 – 4 decision will only add fuel to the SCOTUS fire, arguing, not unreasonably, that any decision in which one swing vote represents the difference between “I win” and “You’re an imbecile, Judge Sotomayor” is hardly convincing.

Four SCOTUS judges – retards and victims of Alzheimer’s disease though they may be – supported the appeals court decision: this ruling therefore means absolutely nothing. Hell, if anything it will make the Obamatons bolder in their support for legal discrimination by the government, since only the right wing is opposed to it.

Jaibones on June 29, 2009 at 6:06 PM

Well. That didn’t take very long.

Jaibones on June 29, 2009 at 6:10 PM

I feel like throwing my hands in the air like a referee signaling touchdown and knuckle-punching my fellow conservatives here. It’s like, wow, finally a meaningful victory against this adminstration’s boondoggle, brainless decision-making.

Goldy1 on June 29, 2009 at 6:53 PM

OBVIOUS.

LarryG on June 29, 2009 at 7:04 PM

Oh, thought I would add this: went out with someone that looked like her – turned out to be dog show and she came in second – behind Hillary.

LarryG on June 29, 2009 at 7:28 PM

Are you saying then that only the white and hispanic firefighters were able to get study material,while the black fire firefighters were denied access to those same materials?

oldernwiser on June 29, 2009 at 12:12 PM

No. The argument was made that people who had relatives or friends who had studied for similar tests might not have to buy the books new (the total cost was in the neighborhood of $500). Some people also claimed that there was a long delay on the books that had to be backordered. SCOTUS held, properly, I think, that this was not a significant effect and thus could not have a demonstrable ‘disparate impact’.

My concern is that whether or not there is any disparate impact’ the testwriters should have notified the publishers that these books were likely to be in demand. Colleges notify publishers of expected demand for textbooks; this seems to me similar, especially for books for which the demand is limited and which sell for such high prices.

njcommuter on June 29, 2009 at 7:37 PM

This is just so d**n sweet on so many levels. In your empathetic race face, baby. Racism goes both ways, no matter how it makes you feel.

Good for the firemen!

swede7 on June 29, 2009 at 9:21 PM

A victory for common sense, if only a narrow one.

Predictably the looney race-baiting libtards are now going into the usual temper tantrum they throw when eeevil white men aren’t kicked around:
http://thirdbranch.crooksandliars.com/david-neiwert/supreme-court-overturns-sotomayors-r

Dark-Star on June 29, 2009 at 9:36 PM

Unfortunately, we have inherited blind spots where the pendulum of justice has swung far past equity and into the same wrongs coming from the other direction. (Jazz Shaw, as quoted by Ed Morrissey)

In Ed Morrissey’s reply to Jazz Shaw’s critique, he made mention of “turf” protection on the part of judges. I think he’s noted an important motive at work in this case, one that I regret not having seen, myself.

However, it seems good to take issue with Jazz Shaw’s very notion that “the pendulum of justice has swung.” I respond that the pendulum hasn’t swung, because there’s no pendulum. More directly, the problem doesn’t seem to be comparable to inertia, but to a change of target. It seems more accurate to say (as Aristotle does in the Politics), that men in an inferior condition tend to aim for and argue for equality, and those in an equal condition tend to aim for and argue for superiority. To borrow this other inertial metaphor, then, human beings don’t idly overshoot the original target; rather, they pick a new, higher target.

Kralizec on June 29, 2009 at 10:00 PM

5-4 decision

I’m so sick of this.

If 4 of these justices could read, it should have been 9-0.

Saltysam on June 30, 2009 at 12:47 AM

Think of the HUGE plug the testing company just got!

I can see the ad now:

WANT TO MAKE SURE YOUR PROMOTIONS ARE BULLET PROOF?
USE US – WE’RE BACKED BY THE SUPREME COURT!

On side note: how does one say b*tch-slapped in Spanish?

Bubba Redneck on June 30, 2009 at 1:46 AM

No. The argument was made that people who had relatives or friends who had studied for similar tests might not have to buy the books new (the total cost was in the neighborhood of $500). Some people also claimed that there was a long delay on the books that had to be backordered. SCOTUS held, properly, I think, that this was not a significant effect and thus could not have a demonstrable ‘disparate impact’.

Still a bad argument. If the issue were economic, then it wouldn’t be disparate racial impact; it would be disparate economic impact with race as a proxy.

That’s an even worse selling point than the one the defendants used; after all, there’s no right to economic parity in our country (thankfully) and such a ruling would wreck havoc with various other systems. Every level of education and every decision would be a Title VII violation: after all, one could argue that looking at SAT scores in college admissions results in “disparate impact,” as wealthy kids can better afford tutors. Bar exams would likewise be suspect, as BarBri fees make SAT tutoring look like pocket change. The list goes on.

Roxeanne de Luca on June 30, 2009 at 2:02 AM

She’llbe bringing cock roaches to the court when she comes. Along with a Cheby.

Jeff from WI on June 30, 2009 at 7:07 AM

Democrats have an uncanny knack for finding the most hideous looking women in the world for public office. Clinton was a master at it..maybe to placate Hillary but as far as this “woman” goes I really can’t stand looking at her.

LODGE4 on June 30, 2009 at 7:45 AM

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