Justice Kennedy's logic was can be summed up like this. Simply having an overweighted result where white firefighters scored better was not enough to throw the test out. As such, the city would have to show that somehow this particular test was biased. The city never did and thus they violated Title VII. Here's how Kennedy summarized it.
Fear of litigation alone cannot justify the City’s reliance on race to the detriment of individuals who passed the examinations and qualified for promotions. Discarding the test results was impermissible under Title VII, and summary judgment is appropriate for petitioners on their disparate-treatment claim. If, after it certifies the test results, the City faces a disparate-impact suit, then in light of today’s holding the City can avoid disparate-impact liability based on the strong basis in evidence that, had it not certified the results, it would have been subject to disparate-treatment
Meanwhile, in her dissent, Justice Ginsberg concluded that...
The white firefighters who scored high on New Haven’s promotional exams understandably attract this Court’s sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated “a strong basis in evidence” for its plea. Ante, at 2. In so holding, the Court pretends that “[t]he City rejected the test results solely because the higher scoring candidates were white.” Ante, at 20. That pretension, essential to the Court’s disposition, ignores substantial evidence of multiple flaws in the tests New Haven used. The Court similarly fails to acknowledge the better tests used in other cities, which have yielded
less racially skewed outcomes.1
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. In arriving at its order, the Court barely acknowledges the pathmarking decision in Griggs v. Duke Power Co., 401 U. S. 424 (1971) , which explained the centrality of the disparate-impact concept to effective enforcement of Title VII. The Court’s order and opinion, I anticipate, will not have staying power.
Here is how Justice Scalia, in his concurring opinion, counters this argument.
Petitioners were denied promotions for which they qualified because of the race and ethnicity of the firefighters who achieved the highest scores on the City's exam. The District Court threw out their case on summary judgment, even though that court all but conceded that a jury could find that the City's asserted justification was pretextual. The Court of Appeals then summarily affirmed that decision.
The dissent grants that petitioners' situation is "unfortunate" and that they "understandably attract this Court's sympathy." But "sympathy" is not what petitioners have a right to demand. What they have a right to demand is evenhanded enforcement of the law--of Title VII's prohibition against discrimination based on race. And that is what, until today's decision, has been denied them.
As such, the majority believes that merely having an overweighted test result is not enough to allow a test to be thrown out because the test must be shown to have racial biases. Meanwhile, the dissent believes that having an overweighted result is in and of itself proof of the test's racial bias. Furthermore, since no firefighters had the right to the promotion, they shouldn't be awarded them. Furthermore, since other cities test's results have created more racially diverse results, that's also proof that other tests should have been used.
The decision itself will likely not do all that much to railroad Sotomayor's nomination. After all, this was 5-4. Furthermore, she is replacing somone that voted the way she would have. What ought to raise many more problems is the depth with which the Supreme Court went in explaining their decision. The decision is 93 pages. Four justices weighed in in writing. Whereas, Sotomayor issued a brief one page decision. What is clear is that Judge Carbones, who scolded Sotomayor for dismissing serious Constitutional issues in her own decision, has been proven right in this case.
Whatever side of the decision they fell on, the Supreme Court certainly believes that there were many significant Constitutional issues to weigh. That was something that Sotomayor dismissed entirely in her own decision. That's what I would focus on if I were the Republicans. Here is Brad Blakeman agreeing with me.
That fact that she was reversed will certainly add fodder for those on the fence and those who oppose her. Some of the more germane questions that should be asked are: 1. Why at the time did you feel that the Ricci Case should have been dismissed on its face and not heard by your Court?, Your decision in the Ricci case was a terse one page decision, yet, the Supreme Court decision was more than 90+ pages going through in depth the Appellant’s Equal Protection and other Constitutional claims, why did you not take up the Appellants Constitutional arguments?
This decision certainly adds to the intrigue of the hearings coming next month.