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Supreme Court Decides Ricci, Overrules Sotomayor

Today is Justice David Souter's last day on the job, and in an indication, perhaps, of how little the court's composition is likely to change if Sonia Sotomayor is confirmed as his replacement, he today sided with her position in a much-anticipated Title VII case, Ricci v. DeStefano. Souter was one of four justices who dissented from today's opinion and who would have affirmed the decision of the 2nd Circuit panel on which Sotomayor sat.

But in an opinion written by Justice Anthony M. Kennedy, who once again proved to be the decisive swing vote, the court ruled that the New Haven fire department violated Title VII of the Civil Rights Act of 1964 when it threw out the results of a promotional exam in which white candidates outperformed minority candidates. The city's act, the court concluded, discriminated against white and Hispanic firefighters based on their race.

We conclude that race-based action like the City’s in this case is impermissible under Title VII 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. In light of our ruling under the statutes, we need not reach the question whether respondents’ actions may have violated the Equal Protection Clause.

Joining in the majority opinion were Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr. Justice Ruth Bader Ginsburg wrote the dissent in which Souter joined, along with Justices John Paul Stevens and Stephen G. Breyer:

By order of this Court, New Haven, a city in which African-Americans and Hispanics account for nearly 60 percent of the population, must today be served -- as it was in the days of undisguised discrimination -- by a fire department in which members of racial and ethnic minorities are rarely seen in command positions. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971), which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.

Justice Ginsburg's prediction that the opinion will not have staying power may someday prove true. Before that could happen, however, at least one more vacancy will need to come open on the high court -- and it will need to be within the court's conservative bloc. 

Posted by Robert J. Ambrogi on June 29, 2009 at 02:35 PM | Permalink | Comments (1)


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