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Sotomayor’s Supporters and Foes to Debate Supreme Court’s Decision

Interest groups are already lining up to use the Supreme Court’s decision today in Ricci v. DeStefano in their favor, whether they support or oppose the nomination of Judge Sonia Sotomayor to the high court.

As Aaron noted earlier, the Supreme Court this morning decided that the city of New Haven violated the federal civil rights law when it denied white firefighters promotions based in part on their race. That the city was only acting to avoid a lawsuit under the same civil rights law shouldn’t matter, the court ruled in a 5-4 decision.

“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 wrote in the majority opinion, joined by the usual block of conservative justices — Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen Breyer, David Souter and John Paul Stevens. Ginsburg wrote that while the white firefighters “understandably attract this court’s sympathy,” they had “no vested right to promotion. Nor have other persons received promotions in preference to them.”

People for the American Way, which supports the Sotomayor nomination, released a statement this morning in anticipation of today’s ruling, saying that the ruling, whatever it would be, “does not reflect upon Sotomayor’s jurisprudence.”

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.

The Federalist Society has scheduled a conference call with reporters for later this morning, at which point they’re sure to put their own spin on the decision.

Given how close the ruling was, though, it will be hard to say that Sotomayor’s decision in the lower court was either right or wrong, as a legal matter. In fact, Sotomayor was in the majority of her own court in deciding to affirm the district court’s finding that New Haven did not intentionally discriminate against the white firefighters when it tossed out the results of a promotional exam that had a disparate impact on black and Hispanic applicants. That disparate impact could have been the basis for a lawsuit against the city. Whether race was also a factor, in addition to avoiding a lawsuit, is an issue that was never directly addressed or briefed in the lower court, which, as I’ve explained before, is one reason that the full Second Circuit voted against re-hearing the case.

Whether the Supreme Court majority today made new law by deciding the way it did will be the subject of contention for weeks to come.

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