Ginsburg Dissents Offer Bright Spots in Two Disappointing Supreme Court Rulings

Today’s Supreme Court ruling in Ricci v. DeStefano was disappointing, but it’s what we have come to expect from the conservative majority on the Roberts Court. Had retired Justice Sandra Day O’Connor still been on the court, instead of her successor Justice Samuel Alito, this 5-4 decision might well have gone the other way.

The City of New Haven, Conn., was right to question the results of the promotion test given to firefighters, based on its disparate impact on African-American and Hispanic candidates. We know that such tests can exhibit race and gender bias, and city officials correctly threw out the test and began anew in order to create a level playing field for all those seeking promotions.

The federal district court that first reviewed the case determined that the city was making an effort to comply with Title VII Civil Rights Act of 1964 by invalidating the test, and was not discriminating against the candidates who did qualify for promotions. A three-judge panel of the Second Circuit — which included current nominee for the Supreme Court, Judge Sonia Sotomayor — agreed with the lower court’s “thorough, thoughtful, and well-reasoned opinion” that the City of New Haven was “simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact.” Even if Sonia Sotomayor had been on the court for these deliberations, her lower court opinion was in line with Justice David Souter’s position, so her vote would not have changed the outcome.

A dissent authored by Justice Ruth Bader Ginsburg contends that the ruling opinion “ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded less racially skewed outcomes.” Ginsburg also noted that: “Firefighting is a profession in which the legacy of racial discrimination casts an especially long shadow. . . . It is against this backdrop of entrenched inequality that the promotion process at issue in this litigation should be assessed.”

Just last week, the Supreme Court made what initially appeared to be a commendable ruling in the case of a 13-year-old girl who had been strip-searched by school officials looking for ibuprofen. In an 8-1 ruling, the court said that Savana Redding’s constitutional rights were indeed violated by the search. That decision was in line with a comparable ruling made by Sotomayor.

Having found that Redding’s rights were violated, the Supreme Court, by a smaller majority, also ruled that the very school officials responsible for the strip-search could not be held liable for their actions. The justices left it to the lower courts to determine whether the school district itself could be held liable. On the question of liability, Justices Ginsburg and John Paul Stevens dissented, with Ginsburg arguing that the school vice principal’s “treatment of Redding was abusive and it was not reasonable for him to believe that the law permitted it.”

Based on the court’s performance on these two cases, NOW is more eager than ever for Judge Sotomayor to join Justice Ginsburg on the high court in time for the next session.


Contact: Caitlin Gullickson, media[at], 202-628-8669 ext 123