Sonia Sotomayor got reversed Monday, as the U.S. Supreme Court turned back a decision she had backed as a federal judge.
This was the sixth time that the Supreme Court has ruled on an opinion made by Sotomayor, a federal appeals court judge nominated by President Obama for a vacancy on the Supreme Court.
It was the fourth time the Supreme Court has disagreed with her judgment.
This 66 percent record of reversal will no doubt come up in Sotomayor’s Senate confirmation hearings, especially because the most recent reversal was in a case involving a highly controversial issue.
Sotomayor, who serves on the U.S. Court of Appeals for the Second Circuit, had been on a panel of three judges that upheld a district court ruling that said the city of New Haven, Conn., acted properly in throwing out the results of a firefighters’ promotion exam given in 2003.
The city did this because no African-Americans had done well enough on the exam to be promoted.
Therefore, the city decided that the test violated Title VII of the Civil Rights Act of 1964 because it had a disparate impact upon one group.
A group of mostly white firefighters who had done well enough on the exam to be promoted sued the city, launching a case known as Ricci vs. DeStefano.
Ultimately, the Supreme Court ruled, in a 5-4 decision, that the city had discriminated against the white firefighters.
A majority opinion by Justice Anthony Kennedy stated that the city should have shown strong evidence that the test was discriminatory before deciding to write a new test.
Much is being made of Sotomayor’s involvement in this case. However, court watchers advise that reversal by the Supreme Court needs to be put in context.
“Reversal is a common if sometimes painful part of life for appellate judges,” wrote Tony Mauro earlier this month in The National Law Journal.
Mauro noted that Justice Samuel A. Alito Jr. of the Supreme Court had worse luck than Sotomayor when he was a federal appeals court judge.
The Supreme Court reviewed two decisions in which he was a member of the majority and reversed them both.
Sotomayor’s defenders also note that Ricci vs. DeStefano was a particularly difficult case. Had the city accepted the test results, black firefighters could have sued, just as the white firefighters sued when the results were thrown out.
The appeals court panel on which Sotomayor served mentioned this dilemma in passing, before ruling, with little elaboration, that the city had acted properly.
Judge Jose A. Cabranes, Sotomayor’s Yale Law School mentor and her colleague on the appeals court, argued that more elaboration and debate was needed.
“This perfunctory disposition rests uneasily with the weighty issues presented by this appeal,” Cabranes wrote in.
But while Cabranes did not seem to agree with her in this case, Sotomayor did have support from David Souter, the Supreme Court justice she will replace if confirmed.
Souter, along with Justices Stephen Breyer and John Paul Stevens, joined in a dissent written by Justice Ruth Bader Ginsburg.
Chief Justice John Roberts, along with Justices Alito, Antonin Scalia and Clarence Thomas, joined Kennedy in the majority.
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