As JohnD has already noted, the Supreme Court today reversed the Second Circuit decision (in which SCOTUS nominee Sonia Sotomayor joined) that had upheld the city of New Haven’s decision to throw out a test that appeared to favor white firefighters. In today’s decision, Ricci v. DeStefano, the Supreme Court ordered judgment in favor of the firefighters, holding that the city’s fear of litigation was not enough to justify throwing out the test. Justice Kennedy wrote the majority opinion, joined by the Four Horsemen (Roberts, Scalia, Thomas, and Alito). Bottom line:
Confronted with arguments both for and against certifying the test results-and threats of a lawsuit either way-the City was required to make a difficult inquiry. But its hearings produced no strong evidence of a disparate-impact violation, and the City was not entitled to disregard the tests based solely on the racial disparity in the results.
Our holding today clarifies how Title VII applies to resolve competing expectations under the disparate-treatment and disparate-impact provisions. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of our holding today it should be clear that the City would avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment liability.
The decision was 5-4, with the usual suspects (Ginsburg, joined by Stevens, Souter, and Breyer) dissenting.
Did Judge Sotomayor get reversed? Yes, she did. But she got reversed 5-4, with the “conservatives” voting one way and the “liberals” voting the other. Sotomayor can justly be subjected to criticism for participating in the Second Circuit’s curious decision to issue a very brief, unsigned opinion, as I’ve already discussed. But, given that 44% of the Supreme Court agreed with her, there’s no basis for saying that Sotomayor’s views on the merits of the case are out of the mainstream. So I frankly doubt that this case will have much effect on her confirmation. Had today’s decision been 9-0 or 8-1 to reverse, that might have been a different story.
The other big news today, as reported by the excellent SCOTUSblog, is that the Court did not decide one of the cases argued this term. The case, Citizens United v. FEC, which asks “[w]hether federal campaign finance laws apply to a critical film about Senator Hillary Clinton intended to be shown in theaters and on-demand to cable subscribers,” will instead be reargued in the fall, and the parties have been ordered to brief the following question:
“For the disposition of this case, should the Court overrule either or both Austin v. Michigan Chamber of Commerce and the part of McConnell v. FEC which addresses the facial validity of Section 203 of the Bipartisan Campaign Reform Act of 2002?”
Well, if that’s not a signal, I don’t know what is. Look for a potential campaign finance earthquake this fall — Austin upheld a state law banning independent corporate expenditures to support or oppose political candidates.
For more on the campaign finance issue, check in with Rick Hasen’s excellent election law blog later today or tomorrow.