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.