In a 5-4 decision today, SCOTUS decided that the city of New Haven acted inappropriately when the city threw out the results of a promotion test for firefighters when the African-American candidates did not score high enough to be eligible for promotion. The city feared the test was unfair (not intentionally, but perhaps by accident), but the Court said that they could only throw it out if they thought they would get sued, and could prove they thought they would lose in court. Kennedy, the new swing vote since O'Connor is gone, went with the conservative 4 this time.
When the appellate court upheld New Haven's right to throw out the test, they were acting on judicial precedent. This decision by SCOTUS could be called "legislating from the bench" since it breaks new ground and is said to be more broad than expected...but I think that term only applies to justices nominated by Democratic presidents.
I have taken courses in item writing and have written test questions for the national board licensing exam to become a registered nurse. The content of these exams is based on a national study of what RNs actually do in their jobs, so that the content matches the workplace expectations and knowledge requirements -- not some company's idea of what's important. Each question is carefully tested to make sure it is not misunderstood or a "gotcha" and that it is a fair question, directly related to successful practice.
Would be nice if firefighters could rely on the same type of exam testing and validation that RNs do. This is an awful decision -- New Haven did the right thing.
Dahlia Lithwick of Slate
SCOTUS opinion (PDF)
Jonathan Turley's blog
SCOTUS blog here is analysis re: Sotomayor, here is the SCOTUS wiki on the case, with analysis of the opinion to come