Did the Supreme Court pull the trigger?

The Supreme Court has ruled in favor of the New Haven firefighters in the Ricci case by a vote of 5-4. This was the discrimination case brought by white firefighters (and one Hispanic) who were denied promotion despite being at the top of the list on the test used by the City, because blacks didn’t do well enough on the test to be promoted.

Judge Sotomayor had blessed the actions of the City that the Court struck down today. She did so, moreover, in an opinion that devoted only one paragraph to the merits of the case.

According to Scotusblog, the decision is based on a holding that the City of New Haven cannot be sued for disparate-impact liability. The City had relied on its alleged fear that African-Americans would sue for discrimination if it made promotions based on a test that African-American candidates did not do well enough on. The majority rejected this excuse for racial discrimination on the facts of the case:

We hold only that, 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 inevidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious, discriminatory action….

[T]he record makes clear there is no support for the conclusion that respondents had an objective, strong basis in evidence to find the tests inadequate, with some consequent disparate-impact liability in violation of Title VII.

The opinion is by Justice Kennedy, with Justice Scalia filing a concurring opinion and Justice Alito filing one as well, in which Justices Scalia and Thomas joined. So it may be that the Court did not go as far as perhaps it should have; we’ll see.

But this much is clear: the Court devoted 93 pages to a matter that Judge Sotomayor tried to dispose of in a summary order. Moreover, according to Ed Whelan, not a single Justice thought that Judge Sotomayor acted correctly in granting [correction: affirming the grant of] summary judgment for the City of New Haven. [Note: Ed has clarified his post to say that “Ginsburg and the three Justices who joined in her opinion “believe[] that Sotomayor and the other judges below applied the wrong standard.”]

UPDATE: I’ve read the concurring opinions of Justice Scalia and Justice Alito. They do not express any dissatisfaction with Justice Kennedy’s majority opinion, in which both Justices “join in full.”

Justice Scalia, in his words, “write[s] separately to observe that [the Court’s] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 cnossitent with the Constitution’s guarantee of equal protection?” Justice Scalia makes it clear that this question, which “is not an easy one,” was properly not reached in the Ricci.

Justice Alito’s concurrence is dedicated to taking on aspects of Justice Ginsburg dissenting opinion. Here’s how Alito ends his opinion:

Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City’s exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City’s asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.

The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law–of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.

(emphasis added)


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