In a 5-4 ruling authored by Justice Anthony Kennedy, the U.S. Supreme Court has reversed the ruling by Supreme Court Nominee Sonia Sotomayor and two other Court of Appeals judges in the case of Ricci v. DeStefano. [Full opinion and analysis below]

In Ricci, white New Haven firefighters claimed that they were the victims of discrimination. The City of New Haven had utilized a racially-neutral officer qualifying exam, prepared by a company which specializes in firefighting tests, specifically designed to avoid inherent or implicit biases which might discriminate against minorities.

New Haven had no intent to discriminate in administering the test, and had an actual intent not to discriminate. To the extent there was a fear of discrimination lawsuits, that fear was sufficient to result in a racially-neutral qualifying exam. The result of the test, however, was that no blacks would be promoted (using New Haven’s criteria for appointment in which test scores played an important part), but 17 whites and 1 Hispanic would get promoted. New Haven, fearing a lawsuit claiming racial discrimination under a “disparate impact” theory (meaning the results were racially skewed regardless of intent), nullified the results.

Sotomayor and her co-panelists on the Second Circuit Court of Appeals adopted a lower court opinion finding that New Haven acted within the law. In a brief per curiam opinion, Sotomayor found that New Haven’s conduct was “protected” because New Haven was attempting to avoid an unlawful disparate impact. The full Court of Appeals declined to re-hear the case, although several of the Judges criticised the fact that the Sotomayor panel had relied on the lower court opinion and did not examine the issues on its own.

The U.S. Supreme Court, however, rejected the view that fear of disparate impact lawsuits was a sufficient ground upon which to invalidate an otherwise racially-neutral test. The Court held that in order to justify its actions, New Haven would have had to prove that there were a strong baisis for believing that it actually would have been liable for disparate impact liability had it not invalidated the test.

The Court held that since New Haven’s decision explicitly was based on race, the decision presumptively was an invalid violation of discrimination laws, unless there was a legally valid justification. The Court held that regardless of New Haven’s “well intentioned or benevolent” intent to protect itself against discrimination lawsuits, such conduct constituted discrimination without legal justification. Because the Court found a violation of the discrimination laws, the Court did not reach the issue of whether New Haven violated the Equal Protection clause of the 14th Amendment to the U.S. Constitution.

The Supreme Court split along the “convervative” vs. “liberal” line, with Kennedy as the decisive vote. Roberts, Scalia, Alito and Thomas joined Kennedy in voting to reverse, and Ginsburg voted to affirm, with Souter, Breyer and Stevens joining her. Scalia and Alito (with Thomas and Scalia joining) also filed separate concurring opinions.

Assuming Sotomayor is confirmed, her presence on the Court would have made no difference in Ricci, since she is replacing Souter. The 5-4 split likely will give Sotomayor’s supporters comfort, since while she would have been in the minority, several current Supreme Court Justices agreed with her conclusion in the case. Nonetheless, there is plenty of fodder for Sotomayor’s opponents, both in the rejection of her position by the Court and her failure to deal with these issues head on, deferring instead to a lower court’s opinion.

One other interesting aspect of the case is the issue of “empathy.” Much has been made about Barack Obama’s desire for Justices who show “empathy,” and Sotomayor made controversial off-the-bench statements regarding how a “wise Latina” judge would view cases (better or at least differently from white male judges). But in the second paragaraph of her Dissent, Justice Ginsburg noted that “sympathy” for the firefighters played no role in deciding the case. So what exactly is “empathy” as a valid attribute for a Supreme Court Justice? And if Sotomayor lets “empathy” enter into her decision making process, does that set her apart not only from Sandra Day O’Connor but also Ruth Bader Ginsburg?

Here is the full set of opinions. Use the Zoom feature within the image box to enlarge the text:

Ricci v DeStefano – US Sup – 07-1428

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