NYU Law Professor Cristina Rodriquez on Ricci v. DeStefano

( The Hill) The Supreme Court on Monday narrowly reversed a controversial decision written by President Obama’s nominee to join the body, giving conservative groups a chance to take issue with Judge Sonia Sotomayor even as her confirmation looks increasingly likely.

Justices reversed the Second Circuit Court of Appeals decision in Ricci v. DeStefano, a case that has been at the heart of conservative opposition to Sotomayor’s nomination.

Sotomayor and colleagues on a three-judge panel found the city of New Haven, Conn., did not discriminate when it dismissed results of a promotion test for firefighters after too few minorities passed. Just one Hispanic firefighter passed the test, and no African Americans did.

Twenty men who had passed the test sued, including Frank Ricci, a white firefighter who had spent money on study aids because he is dyslexic. Sotomayor’s court sided with the city in upholding a lower court ruling.

Writing for a 5-4 majority, Justice Anthony Kennedy cited a violation of Title VII, which prohibits employment discrimination on the basis of race, gender or religion. The court's conservative wing, including Justices John Roberts, Antonin Scalia, Clarence Thomas and Samuel Alito, joined Kennedy.

Kennedy and the court’s conservatives referred obliquely to Sotomayor's participation in the case, citing the appeals court's affirmation of the lower court ruling “in a one-paragraph, unpublished summary order; [the appeals court] later withdrew that order, issuing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning.”

Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justices John Paul Stevens, Stephen Breyer and David Souter. Ginsburg took the unusual though not unheard of step of reading her dissent from the bench.

Sotomayor’s presence on the court would not have changed the decision. She would replace Souter, who has generally sided with the court’s liberal wing.

The decision will inflame right-leaning groups that oppose Sotomayor’s nomination. The conservative Federalist Society has already scheduled a conference call for reporters for Monday morning, while other groups will use the decision to highlight Sotomayor’s so-called reversal rate — the number of times her opinions have been overturned by the high court.

But the renewed attention to the Ricci case is unlikely to have an impact beyond a few uncomfortable questions asked of Sotomayor during her forthcoming hearings before the Senate Judiciary Committee. Even conservatives in the Senate have said opposition to her nomination, the first of a Hispanic woman in the court’s history, is likely to fall flat.The two cases, along with others released Monday by the Supreme Court, conclude Souter’s 19 years of service. Nominated by President George H.W. Bush at the urging of then-Sen. Warren Rudman (R-N.H.), Souter has consistently joined the more liberal wing of the court, to the chagrin of Republicans.

Scott Drake interviews New York University law professor Cristina Rodriquez