Will the Supreme Court Overrule Sotomayor?

It seems likely that right in the middle of Sonia Sotomayor's confirmation hearings the court she's trying to join will overrule one of her controversial appellate court rulings:

In a decision that could fuel controversy over Supreme Court nominee Sonia Sotomayor, the high court this month is expected to overrule one of her key appellate court rulings.

Sotomayor was part of a three-judge panel that, in a two-paragraph opinion, rejected an appeal by white firefighters from New Haven., Conn., who contended that they were victims of racial discrimination when they were denied promotions. They had scored well on a test, but the city decided against using the scores because it feared it might be sued since the results meant no blacks would be promoted.


The ruling in the firefighters' case promises to be one of the most important of the Supreme Court term because it could affect public agencies across the nation. It is sure to gain even greater notice now that President Obama has nominated Sotomayor for the Supreme Court. Critics contend that Sotomayor's opinion shows that she would tilt in favor of racial minorities.

The high court is thought to be divided on the case, which pits two provisions of the Civil Rights Act against each other.

On the one hand, the act says no employee may be discriminated against because of his or her race, sex, religion or national origin. On the other hand, the law also says an employer can be sued for using a hiring or promotional standard that has a "disparate impact on the basis of race," unless it can be defended as a "business necessity."

The white firefighters pointed to the first provision and said they were discriminated against when the city decided not to use the test scores for awarding promotions.

The city's lawyer pointed to the second provision and said New Haven could be sued by black firefighters who said the test had a "disparate impact" on them and their chances for promotion. Could the city defend itself, he asked, by proving that a paper-and-pencil test was the best and only reasonable way to decide who gets promoted to lieutenant or captain?

He doubted this defense would succeed, and he recommended dropping the test and starting over. The New Haven Civil Service Board split 2 to 2 on the issue, which meant the test results were set aside. Since then, the city has been fighting the discrimination suit from the white firefighters.

Since the case was heard this term I don't believe the court can sit on this case and wait until after the confirmation hearings are complete to avoid affecting the outcome. Most experts who watched the oral arguments feel pretty sure the court will rule in favor of the white firefighters and will overturn the lower court's ruling. That may create some embarrassing questions for Sotomayor.