A decision is expected today in the New Haven firefighters case currently pending before the Supreme Court, Ricci v. DeStefano. The case was already front-page news before President Barack Obama nominated Judge Sonia Sotomayor to the Supreme Court.
Now it is of even greater interest, since Sotomayor joined the per curiam decision by the court of appeals that the Supreme Court has under review.
The case involves applicants for promotion in the fire department of New Haven, Connecticut. The city administered a test to determine eligibility, but then decided to throw out the results because too many whites, and not enough African Americans, did well on it.
The firefighters who had earned promotions then sued, arguing that they had been discriminated against on the basis of race, in violation of Title VII of the 1964 Civil Rights Act and the U.S. Constitution.
The text of Title VII is all about telling employers that they must ignore race and ethnicity (as well as sex and religion) in their treatment of employees. The statute also says that testing is fine and that nothing in it requires racial or ethnic balancing.
Yet Sotomayor ruled that it violated no law for the city to throw out the promotion test results. To do so, she seized on one subsection of Title VII, which makes it possible for employers to be sued if they use a method of selection that has a significant “disparate impact” on the basis of race or ethnicity, unless that method is “job related for the position in question and consistent with business necessity.”
But it is very odd to seize upon a relatively small part of Title VII and read it in a way that swallows the anti-discrimination focus of the overwhelming bulk of the statutory scheme. Such a reading not only undermines Title VII, but also the Constitution, which forbids government employers from denying “the equal protection of the laws.”
There is nothing in the Constitution’s text that suggests an exception when the discrimination is of a politically correct variety.
The classic instance of judicial activism is making up a constitutional guarantee that is not actually in the Constitution, and using that to strike down a state law. But judicial activism can also involve ignoring a guarantee that in the Constitution to uphold a statute that violates it.
And this gives us reason to suppose that this distortion of the legal texts involved was driven by Sotomayor’s personal policy preferences, the definition of judicial activism. Her now well-publicized extrajudicial pronouncements in these areas suggest that she is deeply immersed in identity politics. In particular, she has been very aggressive in her support for affirmative action and other selection policies to ensure politically correct numbers.
Whatever decision the Supreme Court renders in this case, it’s clear that it will play an important role in confirmation hearings. Sotomayor will have to find good answers as to why she allows her beliefs to narrow her reading of the law.
Roger Clegg is president and general counsel of the Center for Equal Opportunity in Falls Church, Virginia.
