June 29, 2009

Considering the current makeup of the court -- and the long-established propensity of Arthur Kennedy to lean right on civil-rights cases -- this probably isn't a surprise, just deeply unfortunate:

WASHINGTON - The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

"Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions," Justice Anthony Kennedy said in his opinion for the court. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters "understandably attract this court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them."

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg's dissent, which she read aloud in court Monday.

You can read the ruling here [PDF]. Ginsburg's dissent is especially worth reading, since she thoroughly eviscerates the skewed logic the conservatives applied here. The key graf:

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. ... The Court's order and opinion, I anticipate, will not have staying power.

There's also a lot of speculation about how this will affect Sonia Sotomayor's nomination to the Court, since the ruling overturned here was hers. However, what's clear also is that if anyone is being an "activist judge" here, it is the Court's right-wing faction.

As People for the American Way observed in its statement:

Sotomayor and her panel colleagues were bound by longstanding precedent and federal law. They applied the law without regard to their personal views and unanimously affirmed the district court ruling. To do anything but would have been judicial activism.

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