Ruling in favor of white New Haven firefighters, the Supreme Court reversed a decision by Obama Supreme Court Nominee, Judge Sonia Sotomayor in Ricci v. DeStefano. The firefighters were denied promotions when the city of New Haven threw out the results of a promotion test because no African Americans and only two Hispanics passed it. The city of New Haven claimed it feared a lawsuit from minorities.
'The white firefighters filed suit, saying their rights had been violated under both the law and the Constitution's protections of due process.
District Judge Janet Bond Arterton dismissed their suit before it went to trial. She said in her 47-page decision that the city was justified under the law in junking the test, even if it could not explain its flaws.
The case then went to the U.S. Court of Appeals for the 2nd Circuit, where Sotomayor and judges Robert Sack and Rosemary S. Pooler heard the appeal. Oral arguments lasted an hour, with Sotomayor leading the questioning, as is her reputation. But instead of issuing a detailed and signed opinion, the panel said in a brief summary that, although it was "not unsympathetic" to the plight of the white firefighters, it unanimously affirmed the lower court's decision for "reasons stated in the thorough, thoughtful, and well-reasoned opinion."
Kennedy's opinion referred to the judgment of Sotomayor and the other judges only by noting the short opinion.
Kennedy said the standard for whether an employer may discard a test is whether there is a strong reason to the employer to believe that the test is flawed in a way that discriminates against minorities, not just by looking at the results.
In New Haven's case, "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 wrote.
The case has drawn considerable attention not just because of Sotomayor's role but because of the sympathetic nature of the claim brought by the firefighters, who said they were discriminated against simply because of the color of their skin.
The lead plaintiff, Frank Ricci, is a veteran firefighter who said in sworn statements that he spent thousands of dollars in preparation and studied for months for the exam. Ricci said he is dyslexic, so he had tapes made of the test materials and listened to them on his commute to work.'
And now for the bad news.
'On the last day on the bench for retiring Justice David H. Souter, the court failed to reach a decision on one of its most important cases of the term: whether a conservative group's production of a 90-minute film on Hillary Rodham Clinton amounted to a documentary, or merely a long commercial of the type restricted by the McCain-Feingold campaign finance reform act.
Instead, the court took the unusual action of scheduling new arguments on the case for Sept. 9, before the court's new term begins next October. The court wants new briefings on issues that could lead to the justices declaring unconstitutional that part of the act, formally called the Bipartisan Campaign Finance Reform Act of 2002.
The court's decision probably will lead Democrats to push efforts to have a vote on Sotomayor's confirmation so she can be in place before the September hearing, although it is unclear whether her replacement of Souter would affect the outcome of the case.'
So we'll have to wait until September to find out if the court will strike down the constitutional right liberals would like to have for limiting conservative speech.