Justices Reject Sotomayor Position 9-0 -- But Bigger Battles Loom
What's more striking is that the court was unanimous in rejecting the Sotomayor panel's specific holding. Her holding was that New Haven's decision to spurn the test results must be upheld based
solely on the fact that highly disproportionate numbers of blacks had done badly on the exam and might
file a "disparate-impact" lawsuit -- regardless of whether the exam was valid or the lawsuit could succeed.
This position is so hard to defend, in my view, that I hazarded a prediction in my
June 13 column: "Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed... opinion" by U.S. District Judge
Janet Arterton.
Unlike some of my predictions, this one proved out. In fact, even Justice
Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably
rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related.
Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence that the city's claimed motive -- fear of losing a disparate impact suit by low-scoring black firefighters if it proceeded with the promotions -- was a pretext. The jury's job would have been to consider evidence that the city's main motive had been to placate black political leaders who were part of Mayor
John DeStefano's political base.
http://ninthjustice.nationaljournal.com/2009/06/justices-reject-sotomayor-posi.php