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Local Analysis of Supreme Court’s End-of-Term Decisions

Audio

Aired 6/29/09

We'll examine the most recent decisions of the Supreme Court as it wraps its term.

This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

MAUREEN CAVANAUGH (Host): I'm Maureen Cavanaugh. You're listening to These Days on KPBS. This is a big day at the U.S. Supreme Court. The Court's term is ended, final decisions are announced, and it's the final day of Justice David Souter's tenure as member of the Court. Typically in the last days of the term lots of Supreme Court decisions are released, and here to guide us through some of the most important and interesting rulings in this session is These Days Legal Analyst Dan Eaton. And good morning, Dan.

DAN EATON (Attorney and KPBS Legal Analyst): Good morning, Maureen. This is one of these red-letter days that gets the blood pumping for people like – for me, as you know.

CAVANAUGH: Exactly. Well, of course, the first thing we must talk about is the decision that's just been handed down in Ricci de (sic) DeStephano and that, of course, is the issue that's, for critics of the nomination of Sonia Sotomayor, has become a big issue. Tell us about the case.

EATON: It has, and this people will remember because I have discussed this on the air before, is the case in which some white firefighters out of New Haven, and one Hispanic, sued after they took a test, after a test was given for promotion to lieutenant and captain in the fire department. What happened was, after that testing, of which there were no complaints before the test was actually given, there was – there were no African-American candidates who qualified. And so what the city decided to do was not to promote anyone at all. The white firefighters and the one Hispanic thought that was unfair and sued. Now the trial court ruled in favor of the City of New Haven, said, look, they were just trying to comply with the federal anti-discrimination law, Title VII. And, you know what, the Court of Appeals for the 2nd Circuit, with one Judge Sonia Sotomayor sitting on the panel, agreed with the City of New Haven and the lower court. So this resulted in an appeal to the Supreme Court and today the Supreme Court issued its very closely divided ruling, Maureen.

CAVANAUGH: Another one of those five-four rulings. Tell us about it.

EATON: Well, yeah, it was a five-four decision with Justice Anthony Kennedy writing for the majority which said, you know what, the City of New Haven, in trying to avoid discriminating based on the federal anti-discrimination law because these test results had a disproportionate impact or an outsized impact on the African-American candidates who failed to succeed, the City of New Haven actually ended up violating that same federal statute because they ended up discriminating against the white firefighters and the other firefighters who actually succeeded on that test. So, in other words, by trying to avoid violating federal law, the City of New Haven actually ended up violating federal law. And so the Supreme Court came up with this new test that said that you have to have a strong basis in evidence to discriminate against a racial group under federal law if you are going to claim that the reason you were doing it is to avoid an outside impact on a minority group.

CAVANAUGH: A lot is being made of Justice Kennedy's assertion in his decision that fear of a lawsuit is not enough for a municipality to issue a new kind of a test to determine, you know, to make sure that they're – that minority rights are represented. And that, you know, that's a kind of a new standard.

EATON: Well, it is because what the – the bottom line was, is that for this outsized impact theory to succeed, you have to show that the test was not job-related and that it was not necessary, and the fact – and that there was an equally valid, less discriminatory alternative test. And the fact is, they said, the City really can't show that it was a job-related test clearly, it was necessary, and there really was no showing that there was an equally valid, less discriminatory alternative test that would have had less of an impact on the African-Americans. The particular line from the opinion that you just talked about, Maureen, is from Justice Kennedy, quote, 'Fear of litigation alone cannot justify an employer's reliance on race to the detriment of individuals who pass the examination and qualify for promotion,' close quote. Basically, what that means is that Justice Kennedy said, look, the evidence shows that the only reason that this test was thrown out was because white firefighters and this one Hispanic were the only ones who succeeded, and that you cannot do without a very strong showing that the City was unable to make.

CAVANAUGH: Before we get to what this might be as an issue in Sotomayor's confirmation hearings, what does this do to affirmative action laws? Do we have any idea?

EATON: Well, who knows? It seems clear that it is going to be tougher where you have a neutral test that is being given for purposes of examination to challenge that based on the fact that it had an outsized impact on minority groups if this testing was the result of very careful vetting and very careful consideration. So the bottom line is that intentional discrimination – if there is going to be discrimination against a particular group on the grounds that you want to avoid an outsized impact on another group because the testing favored another racial group, it's going to be tougher. In other words, if African-Americans are disproportionately or outsized – have a negative impact from neutral tests, it's going to be harder for them to make that showing if the effect of that kind of a showing is to discriminate against another racial group. It's going to be – This whole what's called disparate impact analysis may very well be affected going forward. And interestingly, Maureen, the Court didn't touch the Constitutional issue, the equal protection issue, because it didn't have to.

CAVANAUGH: Right. Well, let's go on now. How might critics of Judge Sotomayor interpret this ruling?

EATON: Maureen, the court's decision, including the dissent, ran to 93 pages, 93 printed pages, but who's counting? Judge Sotomayor, the panel on which she sat, issued a ruling in this case that ran to three pages, really two, and only one of which had a substantive paragraph. You can expect some very close questioning from – by some Republican Senators over what exactly she had in mind in issuing such a very quick decision on such an important case, actually. And they're going to ask what the reasoning was in saying, while they were sympathetic to the white firefighters, ultimately the City was between a rock and a hard place in trying to avoid liability under the federal law. But you can expect that this is going to take up a great deal of questioning at the confirmation hearing.

CAVANAUGH: Those confirmation hearings begin next month.

EATON: July thirteenth, that's exactly right. Yeah, you can expect that probably the first Republican questioner, who will be Jeff Sessions, who's ranking minority member of the Judiciary Committee, will start off with this case and talking about it.

CAVANAUGH: Now, let's, if we may, move on to a case that came down, I believe, last week, an opinion on a case that we've been talking about for quite some time and it regards the strip search of a thirteen-year-old student, a girl named Savana Redding, in a school nurse's office. I believe it was Arizona. And she claimed that that strip search was a violation of her constitutional rights.

EATON: And the Supreme Court, by a vote of eight-to-one, agreed with Savana Redding that it was an unconstitutional search. Maureen, as you know, we have talked about this case, by my count no fewer than four times.

CAVANAUGH: Umm-hmm.

EATON: This is the fourth time we've talked about this case on this show, and it was a very interesting case. It did involve a strip search for ibuprofen, which is in an amount that's roughly the strength of one Aleve or two Advils. And the Court said, ohh, given the fact that you're talking about a minimal danger of distribution of this kind of a drug and also a very small chance that it actually would be hidden in underwear, the particular search was not justified constitutionally. So that part of the Ninth Circuit decision saying the search was unconstitutional, the Supreme Court agreed with by an overwhelming majority. But the Court did not agree that the school official who ordered that search of the underwear and so forth could be personally liable. They said, umm, the law wasn't sufficiently clear to put him on notice and, therefore, while the search was unconstitutional, as we are holding today, the school vice principal who ordered it could not be personally liable.

CAVANAUGH: And does this ruling have any impact here at all in California?

EATON: Well, as a practical matter, Maureen, it probably does not and the reason for that is the California Education Code already prohibits strip searches, as a matter of fact. The California Education Code says, quote, 'no school employee shall conduct a search that involves removing or arranging any or all of the clothing of a pupil to permit a visual inspection of the underclothing, breasts, buttocks or genitalia of the pupil.' If I can say those words on the air.

CAVANAUGH: Oh, you certainly can.

EATON: So like several states, and there are several states who have these kinds of anti-strip searching law—New York City is another jurisdiction that does—this will have little practical effect. But for those jurisdictions that allow strip searches, it's going to be harder to justify. They are going to have to cross very specific thresholds that the Supreme Court majority has laid down.

CAVANAUGH: Now it's interesting, as you pointed out, it was an eight-to-one ruling by the Court that found that that strip search of Savana Redding was a violation of her constitutional rights, but the dissent was from Justice Thomas and he wrote quite a long dissent in this case.

EATON: He – Maureen, his dissent was actually longer than the majority opinion by about seven or eight pages, as a matter of fact. And what he said was that, applying the same standard as my wonderful clerk, Michael Ambrose, actually discerned when he read the opinion, he applied the same standard that the Court did and said, you know what, I think that you're going too far in intruding on the school authority. The school – Prescription strength drugs are a problem in the schools and the school authorities are entitled to some latitude in deciding the nature and scope of the search. This really does go too far. And on a close reading of the case, that is exactly right, Maureen, as to what Justice Thomas said. It was just a difference of opinion. Interestingly, though, the two Justices said they would hold the school vice principal personally liable, and that was Justice Stevens and Justice Ruth Bader Ginsburg, the only woman on the Court.

CAVANAUGH: Before I want – Before we talk just a little bit about this being the last day for Justice Souter, I do want to talk about one case that the Supreme Court did not – decided not to decide on during this session, and that is the one involving the movie about Hillary Clinton, the case, actually, that challenged current campaign finance laws.

EATON: The "Hillary: The Movie" case.

CAVANAUGH: Yes.

EATON: That's right, that was the case in their in-box that they decided not to deal with and what the Court said on Monday is that it's going to hear arguments at a special session on September ninth, and what they want the lawyers to address is this, they said they want the lawyers to address whether the Court should actually consider throwing out it's earlier rulings on the constitutionality of bans on union and corporate contributions in federal elections. So a whole new area has been introduced into this and it'll be very interesting to see, with a new court, with a different justice, how this ultimately comes out.

CAVANAUGH: Indeed. Justice Dave Souter will not be there because this is his last day on the U.S. Supreme Court and…

EATON: He actually gave some comments to his colleagues, talking about how these were the finest moments in his life and he'll miss them.

CAVANAUGH: I was going to ask you that. Is there any ceremony that is underway when a Supreme Court justice leaves? Or does he just sort of steal away into the night?

EATON: Well, you know, if he doesn't die, as Justice Souter didn't die, of course, there'll be – you can bet there are going to be a lot of receptions. But the most significant ceremony, if you want to call it that, would be his parting comments from the actual bench and his opportunity to say, in a very personal and direct way in public, what his service on the Court has meant. And that's what Justice Souter did today.

CAVANAUGH: And could you share a little bit more of what he did say?

EATON: Well, what he did say, what it has been reported he said, is that, in fact, these were the finest moments of his life. Now, Maureen, for those who have followed his career, as I have, since he was appointed by George H.W. Bush all those years ago, he talked about it being the greatest job in the worst city and so forth. He didn't have that great a time in the city but he appeared to like the intellectual challenge of that job. Ultimately, however, his life has always been about books and scholarship and so forth and so he's going to find plenty of things to do outside of his service on the Court that I'm sure he will find fulfilling, if not as fulfilling as his service on the Supreme Court.

CAVANAUGH: Well, I know you have a lot of opinions to read and this is still a big day for you, so I want to thank you so much, Dan Eaton, for being with us today on this final day of the U.S. Supreme Court session.

EATON: All right, thank you, Maureen.

CAVANAUGH: I've been speaking with the These Days legal analyst Dan Eaton. Stay with us as These Days continues in just a moment.

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