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The New 'Separate but Equal' Justice Ginsburg, Judge Sotomayor and "sympathy" vs. "empathy."

The New 'Separate but Equal'
Justice Ginsburg, Judge Sotomayor and "sympathy" vs. "empathy."


On the surface, it seems like a blatant case of unlawful discrimination. The fire department in New Haven, Conn., administered an exam for firemen seeking promotions. "Many firefighters studied for months, at considerable personal and financial cost," as Justice Anthony Kennedy recounts on behalf of the Supreme Court's majority in Ricci v. DeStefano .

When the results came out, the city decided to deny promotions to the men who had earned them--because they were of the wrong race. Eighteen of them sued. The trial court summarily rejected their claim, and the Second U.S. Circuit Court of Appeals--with La Jueza Empática, Judge Sonia Sotomayor, casting the deciding vote--upheld the decision. This morning the Supreme Court, on a 5-4 vote, overruled Sotomayor and her colleagues and held that New Haven had indeed violated the law by discriminating against the plaintiffs.

How in the world could the lower courts, now joined by Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter and Stephen Breyer, have countenanced this blatant discrimination? They accepted the New Haven officials' claim that they had to discriminate in order to avoid running afoul of antidiscrimination laws.

As Justice Kennedy explains in the majority ruling, federal civil rights laws prohibit two different types of discrimination: "disparate treatment" and "disparate impact." The plaintiffs in Ricci were plainly the victims of disparate treatment, which is prohibited by the plain language of the 1964 Civil Rights Act:

It makes it unlawful for an employer "to fail or re


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