The Supreme Court today ruled that white firefighters in New Haven, Conn. were unfairly denied promotions because of their race, overturning a decision by high court nominee Sonia Sotomayor.

In a blow to affirmative action the court, in a 5-4 ruling, said 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.

Civil rights groups are saying the ruling could have a negative effect on hiring and promotion practices nationwide by potentially limiting the circumstances in which employers can be held liable for decisions when there is no evidence of intentional discrimination against minorities. New Haven had said that it acted, in part, to avoid a civil rights lawsuit.

“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. Observers note that the jobs at issue were supervisory positions for which there are a variety of qualifications, only some of which can be assessed by test results.

The concern in New Haven did not want to select from only among those who performed well on the test because that group, the city believed, was unrepresentative of the department and the city. New Haven believed it could scrap the test and start its assessment process over again. This was in keeping with precedent in many communities all over the country in recent years.

Sotomayor and two other judges on the 2nd U.S. Court of Appeals upheld a lower court ruling in favor of New Haven.

John Glasletter, a spokesman for People for the American Way, told the World that “opponents of Judge Sotomayor have gone to great lengths to use the ruling of her panel against her, and they will ramp up their efforts with the Supreme Court overruling her Second Circuit Court.

He noted that “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 and the full 2nd circuit backed them up.

“In other words,” Glasletter said, ‘Sotomayor is anything but an outlier. She and the seven other federal judges who decided the case at the district and circuit levels were unanimous in determining that precedent and federal law required rejection of the suits.”

The Supreme Court decision today, observers note, upends decades of settled law and, at the same time, undermines civil rights law and affirmative action.

Glasletter said it is the height of hypocrisy and opportunism for Sotomayor’s so-called ‘strict constructionist’ critics to condemn her for judicial activism when she was being conservative with that ruling.

Civil rights leaders, meanwhile, note that the conservative justices have no problem with judicial activism as long as it is used to further right-wing causes, in this cast the weakening of civil rights and affirmative action.

Jason Rahlan, a spokesperson for the Center for American Progress, said the decision overturns the longstanding discretion that allows employers to reconsider promotion tests that yield discriminatory results. He also said the decision will be used for political advantage by opponents of the Obama administration.

“Unfortunately, some on the right will undoubtedly use today’s decision as an opportunity to score political points against President Barack Obama and his nominee to the Supreme Court, Judge Sonia Sotomayor. These attacks have no merit. Unlike the Supreme Court, Judge Sotomayor was bound by Second Circuit precedent when she voted to reject the discrimination claim. As a lower court judge, Sotomayor acted in the only manner she legitimately could by following her court’s binding precedent.”


John Wojcik
John Wojcik

John Wojcik is Editor-in-Chief of People's World. He joined the staff as Labor Editor in May 2007 after working as a union meat cutter in northern New Jersey. There, he served as a shop steward and a member of a UFCW contract negotiating committee. In the 1970s and '80s, he was a political action reporter for the Daily World, this newspaper's predecessor, and was active in electoral politics in Brooklyn, New York.