Supreme Court: Sotomayor (Race)

The debate about Judge Sotomayor's record on racial discrimination issues has been very much dominated by one case: Ricci v. DeStefano.

If you've been following the Sotomayor debate, you may already have heard all about the case. But I'll briefly recount the facts. The city of New Haven gave a test to firefighters who were seeking promotion. When no African American candidates passed the test, the city decided not to promote anyone on the basis of the test. White and Hispanic firefighters who passed the test, sued the city, claiming reverse discrimination.

A panel of judges on the federal Second Circuit Court of Appeals (which included Sotomayor) ruled that, because the tests "had a disproportionate racial impact", New Haven acted within the law, when it declined to award any promotions on the basis of the test.

By a vote of five to four, the Supreme Court reversed the circuit court's decision, and upheld the plaintiffs' charges of reverse discrimination. Associate Justice Anthony Kennedy wrote the following, in his majority opinion:

We conclude that race-based action like the City’s in this case is impermissible under Title VII [of the Civil Rights Act of 1964] 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.

Kennedy was getting at the central issue in the case. The City of New Haven was between a rock and a hard place. Had they promoted those who passed the test, they would have been subject to a discrimination lawsuit by African American firefighters. On the other hand, they were sued for reverse discrimination because they denied the promotions.

The Supreme Court, unlike the Second Circuit, found that the reverse discrimination claim was sufficient to counter the disparate impact standard.

On behalf of the four dissenting justices, Associate Justice Ruth Bader Ginsburg wrote:

This case presents an unfortunate situation, one New Haven might well have avoided had it utilized a better selection process in the first place. But what this case does not present is race-based discrimination in violation of Title VII. I dissent from the Court’s judgment, which rests on the false premise that respondents showed “a significant statistical disparity,” but “nothing more.”

The question that all of this poses for the U.S. Senate is: Can this be characterized as Sotomayor having made the wrong decision, and needing to be corrected by the Supreme Court? If so, does that reflect badly on her qualifications to be an associate justice?

Here is a Slate article by Emily Bazelon, criticizing Sotomayor's handling of Ricci.

Linda Greenhouse has led the charge for the pro-Sotomayor point of view. Greenhouse reported on the Supreme Court for many years, for The New York Times. She now teaches at Yale Law School.

In this op-ed piece in her former paper, Greenhouse argues that the circuit court properly applied the law as it existed when they heard the case. According to her interpretation, the Supreme Court's decision was an example of what I wrote about here, i.e., a reversal of prior case law.

The Supreme Court can go against established precedents, but needs to tread that path carefully. The lower courts are much more constrained than is the Supreme Court, in following precedents. Therefore, according to Greenhouse's analysis, Sotomayor did not err in joining in the Second Circuit's decision.