Don't be fooled by the 5-4 vote breakdown in the Supreme Court's
ruling yesterday in Ricci v. DeStefano. The
justices unanimously rejected Sonia Sotomayor's position.
Explains Stuart Taylor, Jr. in National
Journal:
The Supreme Court's predictable 5-4 vote to reverse the
decision by Judge Sonia Sotomayor and two
federal appeals court colleagues against 17 white (and one
Hispanic) plaintiffs in the now-famous New Haven, Conn.,
firefighters decision does not by itself prove that the
Sotomayor position was unreasonable.
After all, it was hardly to be expected that the five more
conservative justices -- who held that the city had violated
the 1964 Civil Rights Act by refusing to promote the
firefighters with the highest scores on a job-related
promotional exam because none were black -- would endorse an
Obama nominee's ruling to the contrary.
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.
Not much of an endorsement for her nomination to the high court.
About the Author
Doug Bandow is a Senior Fellow at the Cato Institute and the Senior Fellow in International Religious Persecution at the Institute on Religion and Public Policy. A former Special Assistant to President Ronald Reagan, he is author of Beyond Good Intentions: A Biblical View of Politics (Crossway).
