Supreme Court rules for white firefighters

But high court delays deciding status of anti-Hillary Clinton movie

WASHINGTON - The Supreme Court ruled Monday that white firefighters in New Haven, Conn., were unfairly denied promotions because of their race, reversing a decision that high court nominee Sonia Sotomayor endorsed as an appeals court judge.

New Haven was wrong to scrap a promotion exam because no African-Americans and only two Hispanic firefighters were likely to be made lieutenants or captains based on the results, the court said Monday in a 5-4 decision. The city said that it had acted to avoid a lawsuit from minorities.

The ruling could alter employment practices nationwide and make it harder to prove discrimination when there is no evidence it was intentional.

"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. He was joined by Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia and Clarence Thomas.

Dissenting opinion
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.

Kennedy's opinion made only passing reference to the work of Sotomayor and the other two judges on the 2nd U.S. Circuit Court of Appeals who upheld a lower court ruling in favor of New Haven.

But the appellate judges have been criticized for producing a cursory opinion that failed to deal with "indisputably complex and far from well-settled" questions, in the words of another appeals court judge, Sotomayor mentor Jose Cabranes.

"This perfunctory disposition rests uneasily with the weighty issues presented by this appeal," Cabranes said, in a dissent from the full 2nd Circuit's decision not to hear the case.

Monday's decision has its origins in New Haven's need to fill vacancies for lieutenants and captains in its fire department. It hired an outside firm to design a test, which was given to 77 candidates for lieutenant and 41 candidates for captain.

Fifty six firefighters passed the exams, including 41 whites, 22 blacks and 18 Hispanics. But of those, only 17 whites and two Hispanics could expect promotion.

The city eventually decided not to use the exam to determine promotions. It said it acted because it might have been vulnerable to claims that the exam had a "disparate impact" on minorities in violation of the Civil Rights Act of 1964.

The white firefighters said the decision violated the same law's prohibition on intentional discrimination.

Kennedy said an employer needs a "strong basis in evidence" to believe it will be held liable in a disparate impact lawsuit. New Haven had no such evidence, he said.

The city declined to validate the test after it was given, a step that could have identified flaws or determined that there were no serious problems with it. In addition, city officials could not say what was wrong with the test, other than the racially skewed results.

Special session in September
In another high profile case, the court has failed to decide whether a scathing documentary about Hillary Rodham Clinton that was shown during the presidential race should be regulated as if it were a campaign ad.

The court said Monday it will hear arguments in the case again in a special session on Sept. 9. The justices said they want lawyers to address whether the court should overturn its earlier rulings on limiting corporate and union contributions in federal elections.

Citizens United, a conservative not-for-profit group, wanted to air ads for the movie in Democratic primary states and also make the film available to cable subscribers on demand without complying with federal campaign finance law.

But lower courts have said the movie looked and sounded like a long campaign ad, and therefore should be regulated like one.

At the time of "Hillary: The Movie," the New York senator was competing with Barack Obama for the Democratic presidential nomination. She is now secretary of state in the Obama administration.

The court's composition will be different by the time it rehears the case. Justice David Souter plans to retire this month, and Obama has nominated Sonia Sotomayor, a judge from the 2nd U.S. Circuit Court of Appeals, to replace him.

Obama and Democrats hope the Senate confirms Sotomayor before the high court session in September.

The movie is unquestionably anti-Clinton, featuring commentary from conservative pundits, some of whom specifically say she was not fit to be commander in chief. One scene, which was used in an ad, shows Dick Morris describing the senator as "the closest thing we have in America to a European socialist."

Morris, who once served as an adviser to former President Bill Clinton, is now one of the Clintons' harshest critics.

Citizens United wanted to pay for its documentary to be shown on home video-on-demand, and for ads promoting the movie to be shown in competitive Democratic primary states.

Federal judges, however, said the movie should be regulated by the McCain-Feingold law, the popular name for 2002 revisions to the nation's campaign finance law. Judges called "Hillary: The Movie" a 90-minute attack ad, rulings that would require Citizens United to identify the financial backers for the ads if they were to appear on television.

The court also said that if the group showed the movie on cable television, financial backers would have to be named and the group would have to pay the cost of airing the movie.

The movie was advertised on the Internet, sold on DVD and shown in a few theaters. Campaign regulations do not apply to DVDs, theaters or the Internet.

Probing national banks
The justices also ruled Monday that state attorneys general can investigate national banks for discrimination and other crimes, but only with a court's help.

The high court ruled that a state attorney general cannot on his own issue a subpoena against a bank that has branches in that state and others. However, the court said national banks are subject to some state laws under the National Banking Act, and an attorney general can go to court to enforce those laws.

"What this decision today says is that states have the ability to enforce their own laws (against national banks) as long as they follow state due process procedures, which generally mean issuance of a subpoena which can be challenged in court," said lawyer John Cooney, a former assistant solicitor general and deputy general counsel at the Office of Management and Budget.

The state of New York wanted the Supreme Court to overturn a federal appeals court decision that blocks states from investigating the lending practices of national banks with branches within its borders. It was supported by the other 49 states.

Eliot Spitzer, then New York's attorney general, wanted to investigate whether minorities were being charged higher interest rates on home mortgage loans, a practice that is prohibited under various state and federal laws. But federal judges said Spitzer could not enforce state fair-lending laws against national banks or their operating subsidiaries by issuing subpoenas and bringing enforcement actions against them.

"Here, the threatened action was not the bringing of a civil suit, or the obtaining of a judicial search warrant based on probable cause, but rather the attorney general's issuance of subpoena on his own authority," said Justice Antonin Scalia, who wrote the opinion for the court. "That is not the exercise of the power of law enforcement 'vested in the courts of justice,'" which the National Banking Act allows.

Both the Clearing House Association, which represents the banks, and the comptroller said the attorney general was interfering with the federal government's supervisory powers.

The 2nd U.S. Circuit Court of Appeals in New York City had ruled that the responsibility for such investigations rests with the Office of the Comptroller of the Currency, a part of the Treasury Department, and other federal agencies.

"Channeling state attorneys general into judicial law-enforcement proceedings (rather than allowing them to exercise 'visitorial' oversight) would preserve a regime of exclusive administrative oversight by the comptroller while honoring in fact rather than merely in theory Congress's decision not to pre-empt substantive state law," Scalia said.

Chief Justice John Roberts, and Justices Clarence Thomas, Samuel Alito and Anthony Kennedy dissented in part, saying they would have ruled with the New York-based appeals court.