Patterico's Pontifications

6/29/2009

Supreme Court Reverses Sotomayor Decision

Filed under: Civil Liberties,Judiciary,Obama — DRJ @ 12:43 pm

[Guest post by DRJ]

ABC News reports the Supreme Court ruled today that the white New Haven firefighters were unfairly denied promotions because of their race, reversing an appellate decision by Supreme Court nominee Sonia Sotomayor. The firefighters’ attorney believes the case will have a significant impact on jobs that require an occupational test:

“I think the import of the decision is that cities cannot bow to politics and pressure and lobbying by special interest groups, or act to achieve racial quotas,” said Karen Torre, the attorney for the firefighters. “If the test is job-related, especially in a dangerous occupation, then the fact that more African Americans pass, or more Hispanics pass, or more whites pass, isn’t sufficient grounds to ignore the results of an occupational test.”

The decision split 5-4 along ideological grounds. ScotusBlog has links to the opinion, concurrences, and dissent.

Ilya Shapiro @ Cato notes that Ginsburg’s dissent talks of her sympathy for the white firefighters, which is reminiscent of the empathy Barack Obama says he wants in his judicial nominees. Here is Justice Alito’s response (at p. 54):

“The dissent grants that petitioners’ situation is “unfortunate” and that they “understandably attract this Court’s sympathy.” Post, at 1, 39. But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law—of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”

I agree with Shapiro and Justice Alito: Americans deserve equal protection, not empathy.

— DRJ

72 Responses to “Supreme Court Reverses Sotomayor Decision”

  1. What of the argument that this will simply cause employers to switch to tests that are ostensibly job related but in fact do no such thing? I’ve seen that charge leveled against Chicago promotional exams. Although I’ve also seen references that Conn or at least the New Haven city chater at least require something more.

    Soronel Haetir (506ccb)

  2. This “wise Latina woman” got some ‘splainin’ to do.

    Official Internet Data Office (0a0e22)

  3. It all comes down to what you think the purpose of a fire department should be. Should it be to accurately reflect the racial makeup of the community in which it sits?

    Or should it put out fires?

    tim maguire (4a98f0)

  4. Or should it put out fires?

    Or….should it put out fires on a racially adjusted basis?

    rls (e465df)

  5. It all comes down to what you think the purpose of an NBA team should be.

    Should it be to accurately reflect the racial makeup of the community in which it sits?

    John Galt (fde9ed)

  6. Having elected a black president one would think we could move beyond the racial spoils system but someone must think blacks can’t make it on their own.

    Mike K (2cf494)

  7. Right on, DRJ! They deserve enough sympathy so that years of precedent can be thrown overboard to rule in their favor. That’s how I like my sympathy: so that it leads to activism from the bench.
    /mocking

    On one hand, a fine decision for Mr. Ricci who worked hard to get the promotion he deserved. On the other hand, kudos to the Supreme Court for further mudding the water that is “disparate impact” and ruling in a way counter to precedent, which only they can do.

    Justice is served, especially for Mr. Ricci.

    The law…not so much.

    Politics, as always, suffers any time Wendy Long and Rush Limabugh open their big mouths.

    timb (ba8c1d)

  8. Oh, that Rush Limbaugh! Daring to exercise his right of free speech, instead of just shutting up like the ultraleftists want him to.

    Brother Bradley J. Fikes, C.O.R., (adbb73)

  9. ..New Haven firefighters were unfairly denied promotions because of their race, reversing an appellate decision by Supreme Court nominee Sonia Sotomayor.

    You implying Sotomayor wrote it?

    It was an unsigned ruling by a three-judge panel.

    steve (2f9bbd)

  10. Gutless decision. If Title VII invites abuse of race-blind civil rights, it needed to be struck down to whatever extent necessary.

    Politically, this is worse than I anticipated. Patterico said it would be 8-1, at worst. I thought 7-2/6-3. 5-4???? Sotomayor has the cover she needs to fly through confirmation.

    The Republic continues to recede.

    Ed from SFV (dde255)

  11. Justice is served, especially for Mr. Ricci.

    And also for any down-to-earth, fair-minded member of American society.

    As for the ruling being counter to precedent?! You mean we should bring back the very biased system of decades ago, in which truly objective criteria — truly objective means — used by employers in hiring and firing were slyly dispensed with, because, it was felt in an era of rather neurotic homogenity, that an applicant also had to be judged (and screened) based on his or her skin color, religious affiliation, surname, eye shape, etc?

    Mark (411533)

  12. ENFORCING RACIALLY NEUTRAL LAW IS JUDICIAL ACTIVISM !!!!

    JD (121e64)

  13. Patterico said it would be 8-1

    Keep in mind that it was not too many years ago that the Supreme Court, also by a narrow 5-to-4 ruling, permitted the Boy Scouts of America to retain its by-laws that banned homosexuals (and openly, vociferous ones, at that) from being Troop leaders.

    I suspect the 4 justices on the losing side must have believed that if a format and routine followed by the Catholic Archdiosese was good enough for that organization, it was good enough for the BSA.

    Mark (411533)

  14. Soronel Haetir at 12:47 pm makes a great point about how the racial spoils industry will likely react to this decision. Look for civil service exams to be dumbed down considerably so that just about anyone with a pulse will be able to pass, thus giving communities the ability to cherry-pick employees based upon race, nepotism, political patronage, and whatever other criteria suits the powers that be. This battle is not over; not by a long shot.

    JVW (a8c610)

  15. Patterico said it would be 8-1, at worst

    No, that’s not what he said. Pat said this:

    Don’t be utterly shocked if the majority gets more than 5 votes. If it’s 8-1 or unanimous, that would be pretty embarrassing for Sotomayor.

    Not the same thing.

    Steverino (69d941)

  16. Makes you wonder, Steverino (2:36 pm), if the liberal justices didn’t vote the way they did for political purposes. They knew the five votes were there to overturn the decision, so they gave Sotomayor four votes so that she could save face during her confirmation hearnings.

    JVW (a8c610)

  17. […] Patterico’s Pontifications | Supreme Court Reverses Sotomayor Decision […]

    Supreme Court Rules in favor of Ricci, dumps Sotomayor | Conservative Political Report (316491)

  18. Some people think that had the majority not granted summary judgment in favor of the firefighters on the spot, but had instead merely remanded for trial, it might have been 9-0. (I personally think 8-1, at most, because Justice Ginsburg would not have agreed to even that.)

    nk whose Blackberry accepts cookies (bef3ab)

  19. Comment by steve — 6/29/2009 @ 1:54 pm

    So, if she didn’t write the opinion, it behooves her to state who did,
    and what parts were included at the insistance of which Judge on the panel.
    Absent that level of detail, it’s her decision.

    AD - RtR/OS! (766ec7)

  20. It was her case and she was assigned to write an opinion. Instead this “energetic”, “wise Latina” wrote three sentences affirming the District Court and tried to sneak it through as an unpublished order. Due, I imagine, to the dissenting Judge objecting, she published the order as an “opinion”. Call it arrogance, call it laziness, call it insulin-induced psychosis … she did not do the job she was supposed to do. And this was an important case. And this is the lady who said Courts of Appeal set policy while District Courts just try the facts before them.

    nk (bef3ab)

  21. If this was the LiC’s best choice, I hate to think how bad Plan-B is going to be.

    AD - RtR/OS! (766ec7)

  22. “It was an unsigned ruling by a three-judge panel.”

    I vote PRESENT!!!!!

    ROTFLMAO

    HeavenSent (1e97ff)

  23. “ENFORCING RACIALLY NEUTRAL LAW IS JUDICIAL ACTIVISM !!!!”

    I don’t see why. You’d have to be an idiot to see this as one of those cases where both sides are quite reasonable results.

    imdw (5f867f)

  24. True or false:

    If New Haven had only looked at the test and been able to point to one or two questions claiming, however frivilously, that they contained bias, today’s decision says they would have had a rational fear of a Title VII suit, and throwing out the test would have been fine.

    It was [Sotomayor’s] case and she was assigned to write an opinion.

    Says who?

    steve (69730b)

  25. Says me. Do your own research.

    Hillary Rodham Obama (bef3ab)

  26. Are our trolls ever honest ?

    JD (54baf8)

  27. Too busy, then.

    steve (69730b)

  28. steve:

    ..New Haven firefighters were unfairly denied promotions because of their race, reversing an appellate decision by Supreme Court nominee Sonia Sotomayor.

    You implying Sotomayor wrote it?

    It was an unsigned ruling by a three-judge panel.

    It’s my understanding that Sotomayor was one of two judges on the panel who published the majority opinion. She may have also authored the opinion but, either way, it’s still her opinion.

    DRJ (cdbef5)

  29. It’s my understanding that Sotomayor was one of two judges on the panel who published the majority opinion.

    And yet…

    The lower court’s ruling in Ricci was also supported by the majority of the Second Circuit, including judges appointed by Democratic and Republican presidents.

    It would be wrong to use today’s decision to criticize Judge Sonia Sotomayor, who sat on the panel of the Second Circuit that heard this case but did not write its unanimous opinion.

    (Bolding mine)

    steve (69730b)

  30. steve – Maybe you could give us an example of where the NY Times might think it was appropriate to criticize Sotomayor. Suffice it to say that their belief that they do not think it is appropriate to criticize Sotomayor does not make it so.

    JD (54baf8)

  31. No one has yet to explain how the test is biased.

    Michael Ejercito (833607)

  32. Look up the “opinion”, Steve. Or take a Midol. Ot take a hike.

    Hillary Rodham Obama (bef3ab)

  33. #16, would 4 members of the SC identify themselves with an openly racist position simply to help give Sotomayor cover? If so, it’s time for another revolution.

    Ropelight (bb3af5)

  34. Sotomayer doesn’t seem capable of much original thought, as evidenced by the ‘wise latina’ speech she gave fifty times. I’d go mad before I did something that dull.

    So it’s no shock she didn’t write the opinion. She signed on because she doesn’t care about or actually engaged in outright injustice. It’s just not an excuse.

    Juan (c25577)

  35. Juan Williams is on Fox supporting the original suit and against the white firefighters. It’s really depressing to see a black man who makes $500,000 a year seeking preferences. I see no bright future as long as Obama is in power.

    Mike K (2cf494)

  36. Gail Heriot at The Right Coast wrote that the majority ruled that Ricci and the other plaintiffs deserved summary judgment.

    “The four dissenters believed if the City of New Haven was inspired by fear of litigation, then it was not liable. In that narrow respect they agreed with the Second Circuit judges and the district judge. But their bottom line was that the Second Circuit judges and trial judges erred, because they had ended the case in summary judgment and they should have remanded the case. The plaintiffs were entitled to attempt to prove that the proffered motivation was a mere pretext.”

    And she summarizes by noting that no justices voted for the option chosen by the district court and the Second Circuit panel of which Sotomayor was a member.

    linda seebach (908744)

  37. steve,

    Sotomayor was on the panel that heard this case. It doesn’t matter if she wrote the opinion. What matters is that she voted to publish the opinion as the correct result.

    DRJ (cdbef5)

  38. It matters that it was unanimous, not 2-1.

    steve (69730b)

  39. Really, steve? When were the other panel judges appointed to the US Supreme Court? I must have missed the announcement.

    SPQR (26be8b)

  40. Mendacity is all they have, SPQR.

    JD (54baf8)

  41. Well, that and “Hey, look over there! Nekkid womyn!”

    SPQR (26be8b)

  42. If Sotomayor was not on that panel then I would agree with steve that it would be unfair to criticize her. Since she was on that panel, however, I am at a loss to understand his position.

    daleyrocks (718861)

  43. steve,

    Maybe we are focusing on two different things. I thought your point was that Sotomayor isn’t responsible for the opinion unless she authored it. Now, however, I think you are talking about whether the original decision was unanimous. You may be well be right about that. When did Cabranes file his dissent? Was it as a part of the original panel or at rehearing? Either way, my point was that, since Sotomayor was on the original panel, she is responsible for the written opinion regardless of whether she wrote it.

    DRJ (cdbef5)

  44. Guess what else was unanimous? The US Supreme Court in saying Sotomayor’s decision was flat out wrong in the plainest and most fundamental procedural way.

    That matters too, Steve.

    Respectfully, I think it would have been leaked by now if Sotomayor didn’t write that one. She is extreme and outspoken on race preferences, so if you are implying that she shouldn’t be considered responsible for a decision that shares these already plain-as-day views of hers, I have to say it’s no benefit to her. We already know where she stands on this.

    And if she lets decisions go through without taking responsibility for her vote as jurist, she is not fit for the bench, the bar, or society. Let alone the Court.

    Juan (e8717d)

  45. “Guess what else was unanimous? The US Supreme Court in saying Sotomayor’s decision was flat out wrong in the plainest and most fundamental procedural way.”

    I thought it was 5-4

    imdw (7c85b9)

  46. Do Ginsberg, Sotomayor, Souter etc even realize that by taking this nonsensical approach to promotion (that a community with majority non-white people should not be subjected to seeing whites in positions of command) they are also saying that a majority white community should not be forced to see a black person commanding their local fire dept?

    Equality, equality equality, in order to take part, you have take the whole.

    And Alito flattened the race-based proponents with his “But “sympathy” is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law”, funny how the almost entire MSM is going nowhere near that quote, it makes too much sense.

    harkin (f92f52)

  47. Think again. That was the final vote for the relief the plaintiffs got.

    Even the dissent was clear that the 2nd circuit was wrong to dismiss without comment.

    Sotomayor was complicit in practicing poor judgement, even as a “wise Latina”.

    Dr. K (eca563)

  48. Think again? It did not think the first time.

    JD (ca6b04)

  49. Does anyone have a link to the actual test?

    JohnW (a62b24)

  50. New Haven, home to Yale, is TOO Politically Correct and Too Liberally Democrat to do the right thing. I lived in West Haven and got to see the town’s stupidity close up.

    When it comes to fires, you want the best firemen, not the most PC fireman. If you want the PC Fireman, may it be Gary Coleman that tries to schlep your lard kiester out of a burning building. I fear that is the only way someone so stupid would finally get how wrong they are.

    PCD (02f8c1)

  51. Says who?

    Steve hasn’t read the book of Constitutional Law for Dummies apparently.

    It matters that it was unanimous, not 2-1.

    First Steve does the typical troll act of “asking questions,” then failing to achieve any traction with that tired gambit, attempts to distract via grasping of straws. Steve, you really need to read up on the latest test examples of effective troll infestation – you’re about two generations behind so far.

    Dmac (f7884d)

  52. I like what gonnjos said over at hotair, I don’t think I could have said it better:

    After reading the verdict, it is clear that this was a narrow 5-4 decision, as 5 justices ruled Sotomeyer was wrong and the other 4 ruled Sotomeyer was incompetent.

    gonnjos on June 29, 2009 at 1:14 PM

    I believe that this verdict slammed Sonia Sotomayor’s reasoning capabilities gives pause to her qualifications for the Supreme Court of the United States.

    Tanny O'Haley (83a3bb)

  53. #

    ENFORCING RACIALLY NEUTRAL LAW IS JUDICIAL ACTIVISM !!!!

    Comment by JD — 6/29/2009 @ 2:04 pm

    God, do you know anything about anything? One presumes you can log on to your own computer, but I wonder if the wife has to tie your shoes and brush your teeth. I mean, good God, is it enough that you’re ignorant, but willfully so and willing to proclaim it publicly. What a basic misunderstanding of the case that can only be the result of blindness.

    Look up Griggs.

    Look here for Allah’s sake.

    You can’t pretend you even know what the law says. At least DRJ isn’t silly enough to not acknowledge that for thirty plus years in this country we have used to disparate impact to measure whether tests are unfair to minority applicants. Under the law, halfwit, the test, since every minority candidate save one failed it, had a disparate impact. It’s why Ricci lost at the District and the Appellate levels (hint: it’s not a “liberal” plot, it was the law until yesterday).

    Look, I get it, you’re not that bright, jd, but to continually embarrass yourself, just to maintain your partisan hack credentials? You don’t need to. Everyone here knows that if a conservative farts, you will claim not to smell it. You don’t have to be on every thread proclaiming allegiances with no knowledge of fact: we already know. Stick to being angry at Letterman and paeans to the Laffer curve and leave pseudo-law to those who have at least read and understand something about it.

    timb (8cd31a)

  54. Under the law, halfwit, the test, since every minority candidate save one failed it, had a disparate impact. It’s why Ricci lost at the District and the Appellate levels (hint: it’s not a “liberal” plot, it was the law until yesterday).

    Has it been shown that the disparate impact was due to the content of the test?

    Michael Ejercito (833607)

  55. And, quarter-wit, disparate impact is only part of the test!

    AD - RtR/OS! (e2c6d2)

  56. Has it been shown that the disparate impact was due to the content of the test?

    It’s hard to say what was shown. It was all summary judgment.

    When you have genuine issues of intent or other material issues of fact, summary judgment should be denied and the case should proceed to trial.

    Alito’s dissent recited the politics of the situation and the inferences he draws from it. I don’t know how he could make detailed findings of fact regarding issues of intent when there has been no trial, no cross examination, and no jury findings.

    steve (69730b)

  57. Make that Alito’s concurrence.

    steve (69730b)

  58. Alito’s dissent recited the politics of the situation and the inferences he draws from it. I don’t know how he could make detailed findings of fact regarding issues of intent when there has been no trial, no cross examination, and no jury findings.

    Comment by steve — 6/30/2009 @ 2:16 pm

    So how come the District Court and Sotomayor could? You know they granted summary judgment to the city too, right? Because the city said there was no genuine issue of material fact? That it was a question of law?

    nk (bef3ab)

  59. AD is right about that. Great point, actually.

    Juan (c7e552)

  60. I was mocking you, timmah. That is all you are worth to me, throw-away scorn and mockery. Now, resume not directing your comments at me or to me. Life is better when your creepy little being is not following me around.

    JD (f33276)

  61. Partial transcript of oral argument:

    The City: Your Honors, we threw out the test because we wanted to avoid litigation.

    The Court: HAHAHAHAH! SNORT! GIGGLE! HAHAHAH!

    (Laughter subsides, Justices wipe tears from eyes.)

    Justice Alito: What (snicker) do you call this?

    The City: Well, we knew that “those people” sue but we did not expect it from white people.

    nk (bef3ab)

  62. Comment by nk — 6/30/2009 @ 2:46 pm

    That’s just too f…ing cold, but true!

    AD - RtR/OS! (e2c6d2)

  63. nk, uh steve kinda missed that part where the District Court made findings of fact …

    SPQR (72771e)

  64. Comment by Juan — 6/30/2009 @ 2:35

    Which did I get right, the Law, or the level of wit?

    AD - RtR/OS! (e2c6d2)

  65. Comment by timb — 6/30/2009 @ 1:55 pm

    Was that intended to be analysis? Seriously?

    I would ask for a refund of my law school tuition if I were you.

    daleyrocks (718861)

  66. I wonder why the creepy one is so full of hatred and anger?

    JD (0ecdbf)

  67. Hemorrhoids?

    daleyrocks (718861)

  68. If the content of the test was racist, should not the city of New Haven have figured it out before using it?

    Michael Ejercito (833607)

  69. It is obvious that the City of New Haven hasn’t a clue…
    They dumped the results of the test not because the test was improper (it had been vetted by some of the best in the business, after all), but because they were uncomfortable with those results –
    No Minorities (Blacks) eligible for promotion!
    The Racists in New Haven can be found in the mirrors of the “Executive Wash-Rooms” in City Hall.

    AD - RtR/OS! (5fd0fb)

  70. Under the law, halfwit, the test, since every minority candidate save one failed it, had a disparate impact.

    You need to learn your facts better befor you call someone else a nitwit. The fact is that blacks and Hispanics passed the test, but only 2 Hispanics and no blacks were eligible for immediate promotion based on the scores. That’s not the same as “every minority candidate save one failed it”.

    Marcarelli, who is white, got the top score on a promotion exam in 2003 and was first in line for captain. But when the city reviewed all the test results, it found that the pass rate for black candidates was about half the corresponding rate for white candidates. None of the black firefighters scored well enough for an immediate promotion. As a result, the city threw out the test results.

    Steverino (69d941)

  71. steverino – It was too filled with bile and hate to pay attention to things like facts.

    JD (00531d)

  72. What is the racial bias in this two question test?

    1. Does wood burn more readily when it is wetter or drier?

    2. If the pressure in a fire hose goes up, how does it affect how far the water sprays from the nozzle?

    Michael Ejercito (833607)


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