EDITORIAL -- Hard case, bad politics: The Supreme Court's firefighter ruling muddies the issues

The legal adage that "hard cases make bad law" was demonstrated amply in this week's Supreme Court ruling in a case concerning white and Hispanic firefighters in New Haven, Conn., who were rejected for promotion because black candidates did not do well on the test.

That old adage also can be expanded here to say "hard cases make bad politics." That's because conservative commentators have made much of the fact -- way too much -- that the Supreme Court reversed an appeals court ruling supported by Judge Sonia Sotomayor, President Barack Obama's nominee for the top court.

Judge Sotomayor is not the first candidate for the court to be reversed. And in affirming a district court finding, the 2nd U.S. Court of Appeals that she sits on did not issue a full opinion, perhaps because legal precedents seemed to favor the city, not the rejected firefighters. However diced, the issues raised here were complicated -- the Supreme Court decided the case by the barest 5-4 margin.

In part what makes this case hard is that the disappointed firefighters had a sympathetic claim -- some had gone to considerable time and expense in their successful preparations to pass the test, only to have their chances of promotion dashed when the authorities refused to certify the results.

On the face of it, this seems an injustice, but the city rejected the results because it feared that it would be sued if it did not. Given what the law said, there was reason to be concerned.

Whether the test in New Haven was fair to black candidates was debated at the time (the majority opinion of the court held that it was open and fair), but Title VII of the Civil Rights Act specifically prohibits both intentional discrimination as well as unintentional discrimination that has the effect of having a disproportionate effect on minorities, which was what New Haven was worried about.

Of the 77 candidates who in late 2003 took the tests for promotion to lieutenant (43 whites, 19 blacks and 15 Hispanics), the top 10 candidates who did the best all turned out to be white. For captain, 41 completed the examination (25 whites, eight blacks and eight Hispanics), the test came up with seven whites and two Hispanics as eligible for promotion.

Writing for the court majority, Justice Anthony Kennedy said the city lacked the required "strong basis in evidence" to believe that it would face a lawsuit if it certified the test results. Moreover, he wrote that fear "of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who passed the examinations and qualified for promotions."

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Justice Ruth Bader Ginsburg argued that the city had good cause to fear a lawsuit if it had proceeded. She raised questions about the effectiveness of the test in achieving racial balance and persuasively chronicled the precedents that the court was now slighting.

She also gave an important historical context to the seeming injustice done to the rejected firefighters -- one that goes to the very heart of what Congress was trying to remedy with this law. She pointed out that in the early 1970s African Americans and Hispanics composed 30 percent of New Haven's population but only 3.6 percent of the city's firefighters -- and the racial disparity in the officer ranks was even more pronounced.

"By order of this court, New Haven, a city in which African Americans and Hispanics account for nearly 60 percent of the population, must today be served -- as it was in the days of undisguised discrimination -- by a fire department in which members of racial and ethnic minorities are rarely seen in command positions."

That was the big picture the majority ignored in finding unlawful reverse discrimination. And they did it by making a new rule of law that -- in the words of Justice Ginsburg -- "sets at odds the statute's core directives." The result will be to make life harder for employers seeking to meet the objectives that Congress had sought under the Civil Rights Act.

Those right-wing critics who say this hard case is proof of Judge Sotomayor's legal activism have it exactly wrong. If anything, the precedent-breaking activists here were on the court majority.