Bench Memos

Justice Alito on Judge Sotomayor’s Failure of Impartiality

Here’s the close of Justice Alito’s concurring opinion in Ricci (which Justices Scalia and Thomas joined)*:

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.

(Emphasis added.)

* All three justices fully joined Justice Kennedy’s majority opinion.