Lynn v. Sekulow

Lynn v. Sekulow

More Questions About Judge Sotomayor

Barry, today’s Supreme Court decision in Ricci v. DeStefano is sure to be a hot topic at the upcoming hearings for Supreme Court nominee Sonia Sotomayor. The Court reversed a Second Circuit decision that was joined by Judge Sotomayor.


In Ricci, 17 white firefighters and one Hispanic firefighter filed suit against the City of New Haven, claiming that city officials had violated Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause when they failed to certify the results of two promotional exams, one for Lieutenant and one for Captain. The city claimed that it would be liable under Title VII for adopting a practice that had a disparate impact on minority firefighters if it certified the test results since no African-Americans would be eligible for promotion to the position of Captain or Lieutenant.

The district court granted summary judgment to the City, and Judge Sotomayor joined an unsigned summary opinion affirming the district court’s decision. By a 7-6 vote, the Second Circuit declined to hear the case en banc. Three days before the Second Circuit issued its denial of rehearing en banc, the three-judge panel that included Judge Sotomayor withdrew its summary order and filed a per curiam opinion adopting the reasoning of the District Court.

The Supreme Court reversed by a 5-4 vote, holding that a race-based action like the City’s violates Title VII unless the employer can provide a strong evidentiary basis for concluding that it would have been liable under Title VII if it had not taken that action. The Court concluded that the City could not meet this standard.

Justice Alito’s concurring opinion stated: “The dissent grants that petitioners’ situation is ‘unfortunate’ and that they ‘understandably attract this Court’s sympathy.’ Post, at 1, 39. But ‘sympathy’ is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law–of Title VII’s prohibition against discrimination based on race. And that is what, until today’s decision, has been denied them.”

While the dissenting opinion disagreed with the majority’s analysis, the dissent concluded that the lower courts (including the Second Circuit) had used incorrect analysis, stating “[t]he lower courts focused on respondents’ ‘intent’ rather than on whether respondents in fact had good cause to act. . . . Ordinarily, a remand for fresh consideration would be in order.”

The Court’s rejection of Judge Sotomayor’s legal position in Ricci–and in several previous cases–highlights the need for the Senate to closely examine Judge Sotomayor’s views on the Constitution, the rule of law, and the proper role of a judge. For example, does she share Justice Alito’s view that sympathy for a particular party is not a proper basis for considering cases, or does she agree with President Obama’s statement that “empathy” for particular parties is a key quality a Supreme Court nominee should have?

To subscribe to “Lynn v. Sekulow” click here.


Comments read comments(11)
post a comment

posted June 29, 2009 at 2:59 pm

Sotomayor’s position in Ricci was consistent with precedent and had the support of 4 of the 9 justices. The ruling was very much in the mainstream of understanding under Title VII and completely consistent with the rule of law and an understanding of the Constitution.

report abuse


posted June 29, 2009 at 3:30 pm

The city decided that its test was flawed.
Five members of the Supreme Court, without any evidence, disagreed.
It’s obviously a close case in any event, but the process makes no sense at all. A reasonable court would have remanded on the question of the integrity of the test.

report abuse

Your Name

posted June 29, 2009 at 4:20 pm

I believe that the Supreme Court Justices came to the correct ruling. It is my opinion that the basis for denying promotions to the white firefighters and one hispanic firefighter were invalid, with a leaning toward minority favoritism, which could amount to racism. The ruling by the Supreme Court states that these firefighters were denied this based on their race. What happened to blind justice? Courts should be looking at the merits of the case and not a person’s skin color. The law is the law, and everyone regardless of what ethnic background must follow it. This could spell trouble for the empathetic Sotomayor, in her confirmation hearings.

report abuse


posted June 29, 2009 at 5:02 pm

Now we need to ask why it is that one never sees a Black, Hispanic or Native American face among the visitors to our numerous national parks and forests.
Their absence may not be attributable to deliberate exclusion, but the policies of the Federal Government in this regard show a “disparate impact” on the racial and ethnic minorities.
In the interest of fairness, we need to either sell off those national treasures (Disney World is non-discriminatory) or start busing inner-city Blacks and Hispanics, not to mention Native Americans, who ironically surround those discriminatory parks, so that they can equally participate in the Teddy Roosevelt boondoggle.

report abuse

N. Lindzee Lindholm

posted June 29, 2009 at 6:04 pm
I agree with the Supreme Court’s decision in Ricci v. DeStefano. Each candidate had equal access to score high enough to exceed the cutoff mark to have their exam certified for promotional status. Therefore, promotions were not based on race but skills, experience, and intellectual capacities demonstrated through high performance on a standard exam available to all candidates. From a diversity perspective, although it would have been nice to see passing scores from more minority groups including race and sex (male/female) since people from different backgrounds and sex have the capacity to analyze and solve problems in creative lights, bringing enhanced perspectives and skill sets to the table, there continues to be a need for an objective assessment for firefighters and police officers to determine who is qualified to obtain a promotion.

report abuse


posted June 29, 2009 at 10:52 pm

Jimbino what should we do with all the parkland? Strip mine it for coal perhaps? Drill for oil? What developers do you think want to build on the land at Yellowstone Park?

report abuse


posted June 29, 2009 at 11:46 pm

Dear Boris,
Have you been to Disney World? There are no strip mines or oil wells there, and the developments have been held at a distance. Asians, Europeans, Brazilians and Americans of every color flock there year after year.
Funny, not one penny of your tax dollars is spent keeping it up, and it had no geysers, only swampland, when Disney turned it into a goldmine. The gummint, on the other hand, can turn every silk purse into a sows ear, taxing everyone, favoring whites, losing money.

report abuse


posted June 30, 2009 at 12:51 am

The parks aren’t for white people. They’re for the bears, mountain lions, ants and other animals to live in. Do you know how much scientific research goes on in the massive parks? Apparently not.

report abuse


posted June 30, 2009 at 8:46 am

In a principled defense of the New Haven position, Tim Wise ( claims that:
“It is the city’s position, amply documented in the record, that the tests on which Ricci and the other plaintiffs did so well, and on which blacks did so much worse, were invalid indicators of ability. As such, throwing them out did not amount to sacrificing standards, and did not deny Ricci or the others anything to which they were morally or legally entitled. To be promoted on the basis of a flawed exam is not a right, philosophically or constitutionally, that either Ricci or any other person can claim to hold.
“That the city concluded the test was flawed is critical here, because it suggests that tossing out the scores was not merely a pretext for racial discrimination against the white firefighters. This is ultimately the Constitutional issue at hand, which the Court is being asked to decide, and which two previous courts have decided in the city’s favor.
“Rather, New Haven’s actions were based on a determination that the standard being used was inadequate to the task of picking those who would make the best supervisors, and that if they used it, they might be subjected to a successful lawsuit under Title VII of the Civil Rights Act. Under the law, policies that have a disparate racial impact are prohibited, unless those policies can be deemed directly related to job performance. Because they felt the test might not be defensible on those grounds, the city threw out the results. But this decision was about test validity, rather than being based on a desire for racial balance as some larger social goal.”
If this is the case, then it appears that Judge Sotomayer’s decision was the correct one and that the Supreme Court got it wrong this time.
I haven’t read the Court’s decision yet, so I’m still open to hearing to their reasoning.

report abuse


posted June 30, 2009 at 12:33 pm

Either way it was a close 5/4 call. It’s not like Sotomayer’s ruling was reversed 9-0. Everyone knoiws what this is really about. If Sotomayer is appointed, some conservatives are concerned that a lot more of the 5/4 votes are going to go the other way. If the court wasn’t stacked 7/2 on the conservative side, there wouldn’t be half the split decisions there are currently, where GOP appointees have to vota against their sponsors because their consciences won’t allow otherwise…

report abuse


posted July 3, 2009 at 5:23 pm

Wow, is Sekulow’s response lame!
I am a strong supporter of affirmative action – certified, in fact,
but I agree with the majority of the Supremes in this case that its wrong for New Haven to burden the employees who successfully performed on New Haven’s shitty test! Having given the crummy test, New Haven should have to take their medicine for their own poor management performance and promote the white firefighters AND ALSO pay the price of finding other, additional ways to promote the qualified minorities whom the test unfairly failed.
Or else pay the price of the subsequent suit by the discriminated -against minorities!
Why do so many people act as if that’s SO hard to understand!

report abuse

Previous Posts

Another Blog To Enjoy!!!
Thank you for visiting LynnvSekulow. This blog is no longer being updated. Please enjoy the archives. Here is another blog you may also enjoy: Jay Sekulow: Faith and Justice  Happy Reading!

posted 11:26:38am Aug. 16, 2012 | read full post »

Another blog to enjoy!!!
Thank you for visiting Lynn V. Sekulow. This blog is no longer being updated. Please enjoy the archives. Here is another blog you may also enjoy: Jay Sekulow's Faith and Justice Happy Reading!!!

posted 10:36:04am Jul. 06, 2012 | read full post »

More to Come
Barry,   It's hard to believe that we've been debating these constitutional issues for more than two years now in this space.  I have tremendous respect for you and wish you all the best in your new endeavors.   My friend, I'm sure we will continue to square off in other forums - on n

posted 4:52:22pm Dec. 02, 2010 | read full post »

Thanks for the Memories
Well Jay, the time has come for me to say goodbye. Note to people who are really happy about this: I'm not leaving the planet, just this blog.As I noted in a personal email, after much thought, I have decided to end my participation and contribution to Lynn v. Sekulow and will be doing some blogging

posted 12:24:43pm Nov. 21, 2010 | read full post »

President Obama: Does He Get It?
Barry,   I would not use that label to identify the President.  I will say, however, that President Obama continues to embrace and promote pro-abortion policies that many Americans strongly disagree with.   Take the outcome of the election - an unmistakable repudiation of the Preside

posted 11:46:49am Nov. 05, 2010 | read full post »


Report as Inappropriate

You are reporting this content because it violates the Terms of Service.

All reported content is logged for investigation.