Was Sotomayor Reversed, or Did the Supreme Court Change Course?
Headlines proclaiming the reversal of a federal appeals court ruling by U.S. Supreme Court nominee Sonia Sotomayor are off the mark, according to a journalist who has covered the high court.
In a New York Times op-ed, Linda Greenhouse writes that the Supreme Court changed course when it ruled Monday on behalf of white firefighters. In Ricci v. DeStefano, the court said the city of New Haven, Conn., erred when it threw out a fire department promotional exam because no blacks got top scores.
“Like that decision or hate it, cheer Monday’s ruling or deplore it, one thing that is clear from reading the Supreme Court’s 89 pages of opinions in the case is that Judge Sotomayor and her colleagues played by the old rules, and the court changed them,” Greenhouse writes. “Although ‘Sotomayor Reversed’ was a frequent headline on the posts that spread quickly across the Web, it was actually the Supreme Court itself that shifted course.”
The op-ed notes the 1971 Supreme Court decision Griggs v. Duke Power, which held that an employment test can violate Title VII of the Civil Rights Act if it is “fair in form, but discriminatory in operation.” Congress later amended Title VII to codify the decision. The amended law said job requirements producing a “disparate impact” on minorities had to be justified with a showing of actual necessity.
Justice Anthony M. Kennedy’s majority opinion in yesterday’s case announced a “strong basis in evidence standard” in disparate impact cases.
“We conclude that race-based action like the city’s in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute,” Kennedy wrote.
