08/09/2009 05:12 am ET Updated May 25, 2011

Michael Jackson and the Supreme Court

The massive turnout for Michael Jackson at Tuesday's memorial service at the Staples Center in Los Angeles reflects his success as a crossover artist who appealed to both whites and blacks. The downside is the tributes to Jackson since his death on June 25 have come with a high political price. They have deflected attention from the most racially charged and economically important Supreme Court decision in years.

Four days after Jackson's death, the Supreme Court shifted the way job tests are treated when they have an adverse effect -- in the language of the court, "disparate impact" -- on minorities. The case, Ricci v. DeStefano, involved a promotion exam given by the New Haven, Connecticut, fire department in which the pass rates for minorities were approximately half the rate for whites. As a consequence, no black candidate were slated to receive promotion to the position of lieutenant or captain in the New Haven fire department.

Fearing a civil rights suit, the city threw out the results and promoted nobody. The 17 white and one Hispanic firefighters eligible for promotion then sued New Haven and its mayor John DeStefano. The Supreme Court upheld their suit in a 5-to-4 decision that reversed an appellate court ruling.

Prior to the New Haven case, the precedent in disparate-impact law was thought to have been settled four decades ago in the 1971 Griggs v. Duke Power case. There, a unanimous Supreme Court (Justice William J. Brennan did not take part) ruled 8-to-0 that a test that had a disparate impact on minority workers violated Title VII of the Civil Rights Act of 1964. "The Act," Chief Justice Warren Berger declared in delivering the opinion of the court, "proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation."

In Ricci v. DeStefano Justice Anthony Kennedy, writing for the majority, made a point of going back to Griggs. But what Kennedy emphasized was not disparate impact so much as a second issue the Berger court dealt with -- "business necessity." In striking down the requirements Duke Power had established for promotion, Justice Berger went on to say, "The touchstone is business necessity. If an employment practice which operates to exclude Negroes cannot be shown to be related to job performance, the practice is prohibited."

But Berger's concern with "business necessity" remained a side issue in Griggs because Duke Power's promotion criteria were not considered job related. Griggs was seen as a civil rights breakthrough because it changed how tests that hurt minorities are viewed. In the succeeding years what came to matter most for federal agencies dealing with racial-test issues was statistical disparity. The Equal Employment Opportunity Commission, taking its cue from Griggs, instituted a "four-fifths rule" in which a test was presumed invalid if one racial group passed at a rate less than 80 percent of another.

Ricci v. DeStefano changed this emphasis on test results. The Equal Employment Opportunity Commission's four-fifths standard was given a back seat, as business necessity went from being a secondary issue to a determining one in Justice Kennedy's majority opinion. "There is no evidence -- let alone the required strong basis in evidence -- that the tests were flawed because they were not job-related or because other equally valid and less discriminatory tests were available to the city," Kennedy argued. The city, he went on to say, simply did not like the results it got and on that basis invalidated the tests. "Without some other justification, this express, race-based decision making violates Title VII's command that employers cannot take adverse employment actions because of an individual's race," Kennedy concluded.

The implications of Ricci v. DeStefano are bound to be far-reaching. In her dissenting opinion, Justice Ruth Bader Ginsberg argued that the majority's decision delivered a significant blow to Title VII of the Civil Rights Act. "Congress endeavored to promote equal opportunity in fact and not simply in form," she observed. "The damage today's decision does to that objective is untold." Ginsberg's comments point to a new reality -- as a result of Ricci v. DeStefano, businesses now have less reason to worry about the racial consequences of their tests.

In the future, minority job applicants who do badly on job tests cannot expect help from the Supreme Court unless the tests they take are flagrantly unrelated to their work. President Obama will, to be sure, put forth Supreme Court nominees more liberal than those of President Bush, but the oldest and frailest justices are liberal (Justice John Paul Stevens turned 89 in April). But even if he ends up winning a second term, President Obama will, barring a miracle, only end up replacing elderly liberal justices with younger liberal justices.

The rightward direction in which the Supreme Court has been moving since the 1980s should continue well into the next decade. Justice Kennedy has replaced retired Justice Sandra Day O'Connor as the swing vote on racial matters, but rather than providing a true swing vote, Kennedy can usually be counted on to side with the court conservatives, now lead by Chief Justice John Roberts. The conservatives believe, as they argued in a 2007 Seattle student assignment case in which Roberts wrote the majority opinion, that racial distinctions that affect whites must be viewed with the same suspicion as those that affect disadvantaged minorities.

For this court, all affirmative action remedies that give nonwhites a special benefit in order to remedy a racial wrong thus rest on shaky legal ground. Indeed, if the racial sensibility of this Supreme Court has any historical parallel, it is with the conservative post-Civil War Supreme Court of the 1880s, in which Justice Joseph P. Story, speaking for the majority, declared, "When a man has emerged from slavery, and by the aid of beneficent legislation shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of mere citizen and ceases to be the special favorite of the laws..."

Who then will challenge the way in which the Roberts court deals with race? As they compete for camera time with Michael Jackson's grieving family, it is apparent that the veteran civil rights leaders such as Al Sharpton and Jesse Jackson cannot be counted on. The irony is that the best person for challenging the racial thinking of the Roberts court may be President Obama's first Supreme Court nominee, Judge Sonia Sotomayor.

Sotomayor was one of three judges on an appellate panel who ruled against the protesting firefighters and in New Haven's favor. Now she gets a second chance to say why she was right to decide as she did. Should she be willing to risk Senate approval, she is in a position to make Ricci v. DeStefano the centerpiece of her confirmation hearings.

Nicolaus Mills, a professor of American Studies at Sarah Lawrence College, is author of "Debating Affirmative Action: Race, Gender, Ethnicity and the Politics of Inclusion."