The far right's attack on Judge Sonia Sotomayor is not going well, and desperation has clearly set in. In an unbelievable post today, Wendy Long of the ironically-named Judicial Confirmation Network claims that the Supreme Court's bitterly divided 5-4 ruling in Ricci v. DeStefano was actually a 9-0 slap in the face to Judge Sotomayor, who joined the unsigned opinion of the Second Circuit that the Supreme Court reversed today. Long is joined in these distortions by Rush Limbaugh, who proclaimed today that the Supreme Court found that Judge Sotomayor "was indeed a racist" in a "nine-zip decision." Both Long and Limbaugh need to read the Court's opinion. Nothing in what the Court comes close to supporting these blatant mischaracterizations.
Let's start with Justice Kennedy's majority opinion, joined by the Court's other conservative Justices. Justice Kennedy explains that the Court granted certiorari in Ricci in order to make new law in an area that was far from settled. Title VII bans both intentional racial discrimination in employment as well as neutral employment policies that have a disparate racial impact, and Ricci gave the Court the opportunity to assess the relationship between the two. As the Court observed, "[t]his action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue." Justice Kennedy's opinion for the Court focuses on "providing guidance to employers and courts" in a difficult area of employment discrimination, not on castigating the Second Circuit as Long and Limbaugh suggest.
Justice Kennedy's majority opinion takes issue with the lower courts' treatment of this case precisely once, on pages 19-20, where the Court disagrees with the District Court's ruling (affirmed in a per curiam order joined by Judge Sotomayor) that "the Defendants' motivation to avoid making promotions based on a test with a racially disparate impact . . . does not, as a matter of law, constitute discriminatory intent." This is an important point of disagreement, but the District Court's holding was effectively dictated by a prior, binding Second Circuit ruling in Hayden v. County of Nassau, which held, "[T]he intent to remedy the disparate impact of the prior exams is not equivalent to an intent to discriminate against non-minority applicants."
Whether you agree with Justice Kennedy or the Second Circuit/District Court on this issue (we think the lower courts had the better of this argument), it is very difficult to criticize the District Court or Judge Sotomayor on appeal for following prior rulings of her circuit. And we note that Justice Kennedy was far more pointed in his criticism of the Petitioners in Ricci, who proposed a standard that Kennedy called "broad and inflexible" and threatened to render the disparate impact standard of Title VII a dead letter. Justice Kennedy admits "searching for a standard that strikes a more appropriate balance" than that proposed by the parties or the lower courts. The Supreme Court is free to do just that, but lower court judges like Judge Sotomayor can hardly be criticized for following the law as it comes to them rather than anticipating the Court's next move. (Click here for a more-detailed explanation of why the Second Circuit's short per curiam opinion was an example of judicial restraint.)
Long and Limbaugh, likewise, fail to show any daylight between the Second Circuit panel opinion Judge Sotomayor joined, and Justice Ginsburg's dissenting opinion, which urged affirmance of the Second Circuit's judgment - because there really is none. Like the panel opinion, Justice Ginsburg's dissent -- joined by Justices Stevens, Souter and Breyer -- found that New Haven had not engaged in racial discrimination in setting aside a flawed test that had a significant disparate impact on African American firefighters. Significantly, Justice Ginsburg's dissent recognized that the panel's approach was dictated by Second Circuit precedent. Although Justice Ginsburg quibbled with the test emerging from these precedents - she would have modified pre-Ricci Second Circuit precedent in minor ways - her dissent is hard to read as anything but a loud affirmation that the Second Circuit panel, including Judge Sotomayor, got the law right in upholding New Haven's right to withdraw a discriminatory promotions exam. Long and Limbaugh's claims to the contrary are pure fantasy.
This post was written by Doug Kendall and David Gans. Doug Kendall is the President of Constitutional Accountability Center (CAC), a law firm, think tank and action center based in Washington DC, David Gans is CAC's Human and Civil Rights Director. For more on the progressive promise of the Constitution's text and history visit CAC's website or blog.