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?

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