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Posted by on Jun 29, 2009 in Breaking News, Society | 24 comments

New Haven Firefighters: The Divide Remains

As already noted by Joe Windish, the Supreme Court has overturned the decision of the 2nd Court of Appeals in the case where results of a promotion exam failed to produce advancement for a sufficient number of minority candidates. While the ruling itself will likely come as no surprise to many observers, the close, 5-4 margin tells me that we still have a looming divide in our legal system and no way to address it. Frankly, I would like to be more surprised that we could find four SCOTUS justices to vote against the ruling, but I’m not.

(For more commentary from both sides today, follow this link.)

This excerpt from the majority opinion really seems to say it all.

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,” Justice Anthony Kennedy said in his opinion for the court.

In stark contrast, Justice Ginsburg, writing in dissent, seems to be attacking a situation which neither exists nor would have any impact on this specific case if it did.

In dissent, Justice Ruth Bader Ginsburg said the white firefighters “understandably attract this court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them.”

Justices Stephen Breyer, David Souter and John Paul Stevens signed onto Ginsburg’s dissent, which she read aloud in court Monday.

No person in this suit even remotely attempted to claim that the white firefighters carried some sort of “vested right to promotion.” They simply maintained that the test was evenly applied and essentially “colorblind” and delivered valid results. The fact that nobody else “received promotions in preference to them” is a bizarre conclusion, since nobody will get a promotion if the entire system for establishing eligibility is scrapped.

If the case were about a test which was inherently unfair to the economically disadvantaged or similar complaints, it would have deserved much more merit. And, of course, had any officials been found to have rigged the test to assure better grades for white candidates, I don’t think it would have come this far. But nothing close to those claims was made in court. This was an established system for determining advancement which presumably had been used in the past successfully but which is now being challenged because certain individuals didn’t care for the results from this application.

Having four Supreme Court Justices deliver what in essence seems to be a knee-jerk reaction to any case where the race cared is invoked should be troubling to anyone. Unfortunately, our system of justice still contains a number of barriers where double standards not only exist but are actively encouraged by our courts. For other examples we need look no further than family court.

Across most of the nation you will find courts where you would think that the default assumption of our judges would be that the safety and welfare of the children is paramount in any child custody case. As much as that may sound like common sense, try telling that to any father who has attempted to obtain custody of his children during a separation. Unless the mother can definitively be shown to be currently sitting in jail on heroin possession and murder convictions, the mother is going to get custody. And even if the mother is in jail, the father’s custody will generally end on the day she is released.

We’ve made tremendous progress in this country in terms of obtaining equality for traditionally opressed groups. Unfortunately, we have inherited blind spots where the pendulum of justice has swung far past equity and into the same wrongs coming from the other direction. And today’s decision demonstrates that we continue to have powerful and influential members of the judicial system who are more than happy to have these disparities remain in the name of making sure that no person can ever accuse us of bias against minority groups ever again.

UPDATE: Ed Morrissey at Hot Air concerns himself mostly with the effect this may have on the confirmation of Sonia Sotomayor. Personally, while I can see this as a valid question to bring up in her confirmation hearings, it will still wind up being mostly wishful thinking on the part of Republicans. Having a decision overruled is not an immediate disqualifying factor for a nominee, and other (primarily political) factors will likely still make for an uphill battle for Sotomayor’s opponents. Expect a confirmation this summer which still brings along seventy Senate votes or more in her favor.