Judge Sonia Sotomayor has not defended her most widely criticized decision — the one rejecting a discrimination lawsuit by 17 white firefighters, and one Hispanic, against the city of New Haven, Conn. — as a just or fair result.

That would have been an uphill battle: Polls in June showed that huge majorities of the public wanted the Supreme Court to reverse Sotomayor’s decision.

And as I’ve explained elsewhere, although the Supreme Court split 5-4 in ruling for the firefighters in Ricci v. DeStefano, all nine justices rejected the specific legal rule applied by Sotomayor’s three-judge panel. That rule would allow employers to deny promotions after the fact to those who did best on any measure of qualifications — no matter how job-related and racially neutral — on which blacks or Hispanics did badly.

Instead of defending her panel’s quota-friendly rule and its harsh impact on the high-scoring firefighters, Sotomayor and her supporters have argued that she essentially had no choice. The rule that her panel applied had been dictated, they say, by three precedents of her own court, the U.S. Court of Appeals for the 2nd Circuit.

Some critics have expressed skepticism about this claim, but the media have shed little light on its plausibility. I seek to shed some below.

Because some of this gets technical, I’ll begin with critics’ simplest rebuttal to Sotomayor’s precedent-made-me-do-it claim:

Even assuming for the sake of argument that the Sotomayor panel’s decision was dictated by the three 2nd Circuit precedents, it is undisputed that the full 2nd Circuit could have modified or overruled them if Sotomayor had voted to rehear the case en banc, meaning with all active 2nd Circuit judges participating. Instead, Sotomayor cast a deciding vote in the 7-6 decision not to rehear the case, which seems to me to suggest that she was satisfied with the ruling.

There is also ample reason to doubt that any of the three 2nd Circuit precedents actually required the Sotomayor panel to rule as it did, as some politicized professors have pretended.

Sotomayor fleshed out her vague testimony about the issue in answers to senators’ written questions. She quoted her 2nd Circuit colleague

There was controlling authority in our decisions — among them, Hayden v. County of Nassau [in 1999] and Bushey v. N.Y. State Civil Serv. Comm’n [in 1984]. These cases clearly establish for the circuit that a public employer, faced with a prima facie case of disparate-impact liability under Title VII, does not violate Title VII or the Equal Protection Clause by taking facially neutral, albeit race-conscious, actions to avoid such liability.

To unpack the legal language: Title VII is the employment discrimination portion of the 1964 Civil Rights Act. Title VII disparate-impact lawsuits are typically brought by blacks or Hispanics who challenge as discriminatory employers’ use of objective tests on which those minorities do poorly. New Haven’s ostensible reason for denying promotions to the white and Hispanic firefighters who had done well on qualifying exams was fear of being hit with a disparate impact lawsuit by blacks who had done poorly. And any black plaintiffs would indeed have had a prima facie disparate-impact case, which is legalese for proof that blacks had done much worse on the tests than whites.

But Judge Parker gave short shrift to the fact that even when plaintiffs have a prima facie case, an employer such as the city "could be held liable for disparate-impact discrimination only if the examinations were not job related and consistent with business necessity, or if there existed an equally valid, less-discriminatory alternative," as the Supreme Court stressed in Ricci.

In addition, Parker’s reading of both Hayden and Bushey is conspicuously overbroad. Their facts (especially Hayden‘s) were quite different from those of Ricci. And Bushey has been undermined by subsequent Supreme Court precedents and legislation.

That’s why Judge Jose Cabranes, in the main dissent from the 2nd Circuit’s 7-6 denial of rehearing en banc, began:

"This appeal raises important questions of first impression" — meaning questions not controlled by precedent — "in our circuit and, indeed, in the nation, regarding the application of the Fourteenth Amendment’s Equal Protection Clause and Title VII’s prohibition on discriminatory employment practices."

The question at the core of the case, Cabranes said, was: "May a municipal employer disregard the results of a qualifying examination, which was carefully constructed to ensure race neutrality, on the ground that the results of the examination yielded too many qualified applicants of one race and not enough of another?"

This and other questions raised by the case, Cabranes continued, were "indisputably complex and far from well-settled" and "not addressed by any precedent of the Supreme Court or our Circuit," including Hayden and Bushey.

Ricci differed from Hayden in three critical respects. First, as Cabranes explained, Hayden had approved Nassau County’s "race-conscious design of an employment examination," which was achieved mainly by eliminating tests of cognitive skills. Ricci, on the other hand, involved "race-based treatment of examination results" (emphasis added) to override local civil service laws under which promotions are virtually automatic for the firefighters with the best scores on job-related oral and written tests.

Second, Hayden stressed that the white plaintiffs "cannot establish that they were injured or disadvantaged" by the Nassau County test’s race-conscious design. The Ricci plaintiffs were very clearly injured: They were denied promotions that they had done everything possible to earn under New Haven’s civil service laws, and thus were "deprived of the pursuit of happiness on account of race," in the words of Washington Post columnist Richard Cohen.

Third, Hayden upheld the Nassau County exam’s black-friendly design in part "to rectify prior discrimination" by the county against blacks seeking police jobs. Ricci involved no claim of prior discrimination by New Haven against blacks.

Bushey was a lawsuit by whites challenging New York State’s race-norming of scores — by substantially raising each minority applicant’s score — on a qualifying exam to become a correction captain. The 2nd Circuit’s mixed ruling in the case was entitled to little or no weight as a precedent in Ricci for at least four reasons:

• While Bushey held that the state could use unspecified "race-conscious remedies" to avert a lawsuit by minorities who had done badly on a test, the 2nd Circuit ordered further proceedings to determine whether the race-norming remedy chosen by the state went too far, and violated Title VII by "trammel[ing] the interests of nonminority candidates." In Ricci, the Sotomayor panel gave no weight at all to the interests of non-minority candidates.

• In a key provision of the 1991 Civil Rights Act, Congress banned the sort of race-norming that the state had used in Bushey. This provision stated broadly that employers may not "adjust the scores of, use different cutoff scores for, or otherwise alter the results of employment-related tests on the basis of race." Indeed, by throwing out ("altering"?) the results of its test, New Haven arguably violated the 1991 provision, as well as others, in Ricci itself.

• Bushey noted that the white plaintiffs’ initial claims that their constitutional rights had been violated "are not before us," because on appeal they had relied solely on their Title VII claims. In Ricci, "significant constitutional claims… of first impression [were] at the core of this case," as Cabranes wrote. The Sotomayor panel completely ignored them.

• The high-scoring firefighters’ constitutional claims in Ricci were especially strong because landmark Supreme Court decisions in 1989 and 1995 had washed away the foundations of Bushey and another 2nd Circuit decision cited by Sotomayor defenders, Kirkland v. New York State Department of Correctional Services (1980). The 1989 and 1995 decisions held for the first time that (respectively) state or federal favoritism toward blacks is just as suspect under the Constitution as favoritism toward whites. "Any preference based on racial or ethnic criteria must necessarily receive a most searching examination" and be struck down unless "narrowly tailored" to serve a "compelling" governmental interest, according to the 1995 decision, Adarand Constructors v.Pena.

The justices’ constitutional rulings seem quite contrary to the 2nd Circuit’s approach not only in Bushey but also in Ricci, in which — Cabranes suggested — Sotomayor and her allies "took the city’s justifications at face value," ignoring strong evidence that its decision to dump the test scores was driven by racial politics, not legal principle. The result, Cabranes said, was that "municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome — i.e. failed to satisfy a racial quota."

Later, in the Supreme Court’s June 29 majority opinion in Ricci, Justice Anthony Kennedy said it was unnecessary to address the firefighters’ constitutional claims because their Title VII claims alone were sufficient to win the case. But Kennedy stressed that there were "few, if any, precedents in the courts of appeals discussing the issue."

The bottom line is that 2nd Circuit precedents did not make Sotomayor rule as she did. Supreme Court precedent favored the firefighters. Sotomayor’s ruling was her own.