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Justice Sotomayor: The Unjust Hearings

The Republican senators also claimed to be worried by another of her speeches. In 2005, replying to a question at Duke University, Sotomayor said that the “court of appeals is where policy is made” and then immediately added, “and I know…we don’t make law, I know.” That statement appears to mean exactly what the myth denies: that judges must take “policy” into account in deciding what the law is. But Sotomayor, again, denied that natural meaning and said instead that she meant only that the rulings of appellate courts, unlike those of district courts, create precedents that other courts are required to follow. Once again she was led to convert something the public would do well to understand into a banality.

3.

Sotomayor has made thousands of decisions in her seventeen years as a federal judge. Only one of these, however, attracted any sustained attention in the hearings: her vote in the New Haven firefighters case.8 That city employed an examination scheme for promoting firefighters to the ranks of lieutenant and captain; the results made none of the black candidates and at most two Hispanic candidates immediately eligible. An association of black firefighters threatened to sue the city for using the wrong test. When the city withdrew the results, white firefighters sued to protest that action. Sotomayor voted in a panel with two other judges to uphold the city’s decision to withdraw the test and then to deny a petition asking all the other Second Circuit judges to review that ruling. The white firefighters appealed to the Supreme Court, which, in a 5–4 decision and an opinion written by Justice Anthony Kennedy, reversed the Second Circuit and ordered New Haven to reinstate the test results.

Republican senators insisted that Sotomayor’s votes in the case revealed racial bias. They arranged for the white firefights to sit in a row—in uniform—in the hearing room, and for one of them, Frank Ricci, the lead plaintiff, to testify that he is a dyslexic and had spent a great deal of time and expense preparing for the test, paying others to read to him. The hearings suggest, however, that few of the Republicans who charged bias had read the various decisions or understood what was really at issue in the case. In view of the widespread attention the decision has attracted—Utah’s Republican Senator Orrin Hatch declared it not some “itty-bitty case” but one involving one of the most important issues facing the nation—it is worth a more careful examination.

The legal arguments were dominated by the interaction between two different provisions of Title VII of the Civil Rights Act of 1964. The black firefighters who threatened to sue the city cited what is called the “disparate impact” provision. This provides that an employer may not use “a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin” unless the practice is “job related for the position in question and consistent with business necessity” and the employer has not refused to use an available alternative employment practice that has less disparate impact and would also serve the employer’s legitimate needs. When the city withdrew the test results, claiming it might be liable under this disparate impact rule, the white firefighters sued the city under the different “disparate treatment” provision of Title VII, which makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

It is a crucial question how these two clauses interact. The disparate treatment rule condemns, in principle, acts taken “because of” race and other forbidden categories. How should the quoted words be understood? Does an employer act because of race whenever he takes the expected racial composition of his workforce into account in designing or rejecting an employment practice? If so, New Haven necessarily offended the disparate treatment provision in trying to comply with the disparate impact provision. It had to count the number of blacks who had passed. Or does an employer act because of race only when he aims, out of favoritism or animus, to prefer one racial group to the disadvantage of another? If so, then New Haven did not show disparate treatment if its only motive was to avoid disparate impact.

The federal district court trial judge, declaring herself bound by precedent, adopted the second interpretation. She said that though the city did take race into account in abandoning the test results, it did so to avoid violating the disparate impact provision and therefore did not act “because of” race. “The intent to remedy the disparate impact” of a promotional exam, she said, quoting an earlier Second Circuit decision, “is not equivalent to an intent to discriminate against non-minority applicants.” (The white firefighters contested her description of the city’s motive. They argued that New Haven had thrown out the tests to placate a powerful black religious leader and avoid alienating black voters. But the trial judge rejected that claim.)

Sotomayor and the two other Circuit Court judges on her panel affirmed the trial judge’s interpretation in an unrevealing one-paragraph statement. She was pressed at her Senate hearings to say why she had not explained her reasons more fully; she replied that that was unnecessary because the district court’s lengthy explanation was thorough and persuasive. She voted against all the judges of the Second Circuit rehearing the decision because, she said, she knew the case would be argued before the Supreme Court anyway.

The second interpretation seems correct as a matter of statutory interpretation. The disparate impact requirement was first recognized not by Congress but by the Supreme Court in its 1971 Griggs decision: the Court held that employment and promotion tests are illegal if their effect is to the disadvantage of any race and they are not necessary to a business purpose, even if the employer had not intended that result.9 In 1991, Congress amended the Civil Rights Act to adopt the Court’s decision by adding the disparate impact provision to the existing disparate treatment rule. It did so to prevent covert violations of equal treatment by the use of apparently race-neutral practices that were not race neutral in result. It therefore required an employer to consider the consequences of his practices for different groups. It would not have done that if it assumed that the main purpose of its law was to forbid anyone from taking race into account for any purpose.

But when the New Haven case reached the Supreme Court, Kennedy, writing for himself and the four more conservative justices, adopted the first interpretation and therefore declared the city’s motive irrelevant. “Our analysis begins with this premise,” he said, “The City’s actions would violate the disparate-treatment prohibition of Title VII absent some valid defense” not because its motive was racial favoritism but just because it acted to avoid a result that made no members of one racial group eligible for promotion. He held, that is, that any attempt to satisfy the disparate impact rule would necessarily offend the disparate treatment rule.

Since the two rules conflict in that way, he continued, the Court must find some way of reconciling them. So he declared a new rule: New Haven was wrong to withdraw the test results unless it had “a strong basis in evidence that [it] would have been liable under Title VII had it certified the examination results.” It had to show, that is, not just that it was reasonable to think that its test offended the disparate impact rule, but that it would actually have lost the lawsuit the black firefighters had threatened to bring.

It is far from clear what constitutes a “strong” basis in evidence. Kennedy’s opinion makes plain, however, how difficult it would be for an employer to meet that test. New Haven had presented volumes of testimony, summarized at length in the district court’s long opinion, that the test it had used did not satisfy the disparate impact requirement. Evidence showed, it argued, that alternative tests were available that would likely have passed more minority candidates and that were at least equally well suited to identify qualified officers. Kennedy did not simply describe that evidence as insufficiently strong; if he had he would have voted to remand the case to the district court for further taking of evidence. He said that the city had in effect supplied no evidence at all and then simply ordered the city to certify the original results. An employer who wants to change an employment practice that has had disparate impact is now in a very difficult position. His only sure way of proving that he is entitled to change that practice is to encourage an actual disparate impact lawsuit by offended minority applicants and then to lose that suit. Otherwise he could not be sure that he had shown “a strong basis in evidence” for thinking that he would have lost it.

So the decision marks yet another step in the conservative justices’ campaign to ban the most effective means of reducing racial tension in our country. They want to eliminate all vestiges of race-sensitive measures designed to help end racial stratification. They outlawed sensible school assignment plans in Louisville and Seattle that used racial tests.10 They hope to overrule Justice Sandra Day O’Connor’s Grutter decision that allowed law schools to take race into account in admissions policies,11 and now they have all but neutered the disparate impact provisions of the Civil Rights Act. Yes, it would have been unfortunate for the white firefighters who had studied so hard to make them take a new and different test. Sotomayor’s panel expressed sympathy for them. But it is also bad—for community harmony and effective municipal service—when a city with a 60 percent minority population fields a police or fire department with few or no minority officers.

It is not likely that Congress, even if so minded, could effectively overrule Kennedy’s decision by amending the Civil Rights Act. Kennedy was careful to say that since the Court had decided against the city by interpreting that act, it was unnecessary to resolve a further issue: whether the disparate impact provision was itself unconstitutional because it violated the Constitution’s equal protection clause. Scalia, in a concurring opinion, left little doubt of his intentions:

I…write separately to observe that [the Court’s] resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate- impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection?…The war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

If the conservative justices declare the disparate impact provision of Title VII unconstitutional, as part of their so-far triumphant campaign, Congress will be powerless to oppose them.

4.

On one important issue Sotomayor seemed, at least at first, to take an unequivocal stand: “Foreign law,” she told Republican Senator John Cornyn of Texas, “cannot be used as a holding or a precedent, or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law.” In their earlier hearings, both Roberts and Alito, while refusing to commit themselves on any other issue, said much the same. Conservatives have been particularly angered by the Court’s 6–3 Lawrence decision, in 2003, in which Justice Kennedy cited the European Court of Human Rights and other foreign sources in his argument that the equal protection clause forbids making homosexual acts criminal,12 and its 5–4 Roper decision in 2005, in which Kennedy cited the United Nations’ Convention on the Rights of the Child as support for the Court’s ruling that the juvenile death penalty is unconstitutional.13

Sotomayor acknowledged that justices sometimes mention foreign sources, but “in my experience,” she said, “when I’ve seen other judges cite to foreign law, they’re not using it to drive the conclusion. They’re using it just to point something out about a comparison between American law and foreign law. But they’re not using it in the sense of compelling a result.” Later, in response to written questions, she said that “in some limited circumstances, decisions of foreign courts can be a source of ideas, just as law review articles and treatises can be sources of ideas.” But the contrast she made, between using foreign law as controlling precedent, which no one has suggested, and simply as a source of ideas on a par with law review articles, ignores the use that has actually been made of foreign legal material. Kennedy said, in his Roper opinion:

It is proper that we acknowledge the overwhelming weight of international opinion against the juvenile death penalty…. It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.

We share traditions, problems, and challenges with many other nations with similar cultures, and the fact that almost all of them have concluded that certain individual rights are of fundamental importance provides a reason, though of course not necessarily a decisive one, for us to suppose that it is of fundamental importance for us too. We should always carefully reexamine our own moral convictions when we find that no one else shares them. Of course this use of foreign law assumes that interpreting our Constitution requires conviction, and that is what the myth of “fidelity to the law” denies. Apparently the Republican senators will demand that all future nominees abjure any serious use of foreign legal materials; the result might well be to make our constitutional practice more insular, to our cost. We pay an increasingly heavy price for our stubborn fidelity to a foolish myth.

What is to be done? Nothing, I fear, until the idea that judges’ personal convictions can and should play no role in their decisions loosens its grip not just on politicians but on the public at large. Perhaps a brave senator, who declares that he will not vote for any candidate who does not respond to questions like those I described earlier, may begin that process. But the only realistic solution is longer-term. In a book recently reviewed in these pages I suggested that our politics would be improved if high school classes were encouraged to explore political issues in a much more sophisticated way than has been customary.14 An enlightened discussion of the Constitution and of constitutional adjudication would be an essential part of such courses.

  1. 8

    Ricci et al. v. DeStefano et al., unpublished per curiam decision, reversed by the Supreme Court, June 29, 2009.

  2. 9

    Griggs v. Duke Power Co., 401 U.S. 424 (1971).

  3. 10

    See The Supreme Court Phalanx.

  4. 11

    Grutter v. Bollinger, 539 U.S. 306 (2003).

  5. 12

    Lawrence v. Texas, 539 U.S. 558 (2003).

  6. 13

    Roper v. Simmons, 543 U.S. 551 (2005).

  7. 14

    Is Democracy Possible Here? Principles for a New Constitutional Debate (Princeton University Press, 2006); reviewed by Paul Starr, The New York Review, July 16, 2009.

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