The 5-4 decision, with Justice Kennedy joining conservatives Alito, Roberts, Scalia, and Thomas, reverses the ruling of an appellate panel that included Court nominee Sonia Sotomayor. The city of New Haven, Connecticut, gave examinations to firefighters that would be used as the basis for promotions, then threw out the test when twenty white firefighters, but no black firefighters, qualified for promition. The city tossed out the test, it said, because it was threatened by lawsuits by the black firefighters. “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 wrote. Justice Ruth Bader Ginsburg, dissenting, 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.”
It’s easy for Kennedy to say that fear of litigation cannot justify an employer’s reliance on race. After all, he’s the judge; litigation holds no terrors for him. In the real world, the city was in an impossible position. If they promoted the white firefighters, the black firefighters would sue. If they didn’t promote the white firefighters, the white firefighters would sue. The city’s fear of litigation was justified. The courts should have given them a way out. Ginsburg’s argument gave them a way out, that nobody had a vested right to be promoted.