A Project of The Annenberg Public Policy Center

Sotomayor, the Supremes and the Firefighters

Sonia Sotomayor isn’t mentioned in the U.S. Supreme Court’s decision today in a much-watched reverse-discrimination case, Ricci v. DeStefano. But you can bet the decision will be mentioned plenty in the upcoming Senate confirmation hearing that could put her on that court.

Sotomayor and two other judges on the 2nd U.S. Circuit Court of Appeals had upheld a lower court decision in the case, saying that the city of New Haven, Conn., was on firm legal ground when it threw out the results of two exams firefighters took in order to be promoted. No African Americans scored well enough on the test to be eligible for promotion — a result disproportionate to their presence on the force or in the population — and the city, fearing it would be found liable under civil rights law for acting on the results, decided to start over. That’s when a group of white and Hispanic firefighters sued the city.

The decision by the 2nd Circuit panel last year was brief — just a few sentences — and unsigned. The panel upheld the ruling by a lower-court judge in favor of the city. Today’s Supreme Court action, by a vote of 5-4, reversed that result, as many expected. Justice Anthony Kennedy, writing for the majority, treats the 2nd Circuit decision that was either written or agreed to by Sotomayor — with whom he could be serving by next fall — delicately.

In fact, Kennedy barely mentions the 2nd Circuit, except in a description of how the case got where it is:

Majority opinion, Ricci v. DeStefano: After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning. 530 F. 3d 87 (CA2 2008). Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes. 530 F. 3d 88. 

Kennedy wrote that the city of New Haven made its decision to throw out the test results purely on the basis of race, and that mere fear of litigation didn’t justify what amounted to discrimination against nonminorities.

Majority opinion, Ricci v. DeStefano: Whatever the City’s ultimate aim – however well intentioned or benevolent it might have seemed – the City made its employment decision because of race. The City rejected the test results solely because the higher scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

Republicans on the Senate Judiciary Committee now have fresh fuel to use on Sotomayor when she goes before the committee, currently scheduled to happen on July 13. But the fact that four justices agreed with her — including David Souter, the one she would replace — may temper the impact, for some observers at least, of critiques of her differences with the bench’s more conservative members.