This is a rush transcript from "The Journal Editorial Report," July 4, 2009. This copy may not be in its final form and may be updated.
PAUL GIGOT, FOX HOST: This week on The Journal Editorial Report, the Supreme Court overturns a judge who could soon be one of their own in a much-watched workplace discrimination case. We'll take a look back at the big cases of the just completed term, and a look ahead to Sonia Sotomayor's Senate confirmation hearing.
Plus, dangerous precedent. A judge clears the way for U.S. officials to stand trial for the advice they give presidents.
The Journal Editorial Report starts right now.
Welcome to The Journal Editorial Report. I'm Paul Gigot.
The Supreme Court closed its term with a major decision this week, rejection the notion that one kind of racial bias can be remedied by another. On the last day opinions before the court is potentially joined by Judge Sonia Sotomayor the justices overturned one of her most closely scrutinized cases on workplace discrimination. In a 5-4 decision, the court ruled that the city of New Haven violated civil rights' law when it threw out firefighter promotional exams because more whites than minorities passed the test.
Jan Crawford Greenburg is the author of "Supreme Conflict, the Inside Story of the Struggle for Control of the united states Supreme Court." She joins me now from Washington.
Great to have you back on the program.
JAN CRAWFORD GREENBURG, AUTHOR: Always great to be with you, Paul.
GIGOT: All right, let's take the Ricci case first. How significant is the ruling for the law on racial preferences in contracts and hiring?
GREENBURG: Well, I think it's really will have a sweeping impact in the work force, making it really harder, I think, for employees to show some of the standard discriminatory impact forms of discrimination, and especially in occupations where the employer use tests or rules, the court is going to make it much harder for employers to consider race when they're doing hiring and promotions. And obviously, this was one of the most closely watched cases of the term, a big reverse discrimination case and those are always controversial, Paul. It was 5-4. The justices were quite — quite divided on this, a very bitter dissent by Justice Ginsburg. Alito wrote a concurring opinion. He and Ginsburg really went at it in the two opinions.
But this case took on heightened significance because of the role of Judge Sonia Sotomayor. She ruled against those white firefighters down in the lower courts. So, you know, this was being closely watched for what the court was going to rule and whether or not they were going to reject her reasoning.
But I think that before we get into that, Paul, we've got to keep in mind, it was really just the idea that the court decided to take up this case in the first place, that's really significant. Remember, Judge Sotomayor's appeals court panel, dissent of this controversial case, thousands of pages of briefings and arguments, in one paragraph, that's all they did, that was all their legal reasoning. So the idea that the court decided it was important enough to take up, regardless how they ruled, I think is pretty significant in terms of how this will play out in her confirmation hearing.
GIGOT: Well, how much will this play out? You have the issue of the overturning of the judgment itself, but then you have the way that the lower court has treat this had and that what some people thought was a cavalier fashion. Do you think this will be a central.
GREENBURG: Absolutely, very.
GIGOT: Will there be a central issue?
GREENBURG: Absolutely, you're going to hear a lot about this case. The hearings are scheduled to start on July 10th so we've really just got to the next week to try to process it. It's coming right on the eve of those hearings. This will be front and center.
And like you said, I think there will be two issues, number one, the way that she kind of summarily missed these white firefighters' claims. Conservatives say she was trying to bury the claims and that she really supports racial preferences. The significance of this case, that one paragraph, a summary decision that she and two other judges issued.
And then you've got the second question, what the law actually says and here the court obviously ruled 5-4 with the conservatives, rejecting her view. But even the liberal suggested that they thought that lower court should have done more. So you're going to see a lot of the conservatives are going to have to work with. The Democrats and the liberals are going to say, yeah, but look, the liberal justices would have agreed with the end result, that the white firefighters didn't have a case. But again, this is going to be a big one.
GIGOT: All right, let me broaden this discussion out. Let me read you something from Tom Goldstein, a prominent Supreme Court watcher. He wrote this about the court. The court is moving steadily in the direction of rolling back Warren Court precedence that conservative's view of significant overreaching of the judicial role. Do you think that's where the court is going?