Editor 's Note : Lucas A. Powe Jr. is a professor of constitutional law at The University of Texas and the author of the recently published book , `` The Supreme Court and the American Elite , 1789-2008 . '' He clerked for Supreme Court Justice William O. Douglas . Lucas Powe Jr. says it 's not a surprise that justices voted 5-4 in favor of the New Haven firefighters . AUSTIN , Texas ( CNN ) -- Monday , in the much anticipated New Haven , Connecticut , firefighters ' case , the Supreme Court reversed an opinion joined by Judge Sonia Sotomayor , President Obama 's Supreme Court nominee . The reversal was expected and is not the first time an appointee has been reversed by the court he was about to join . Indeed , two of Chief Justice Warren Burger 's opinions for the D.C . Circuit Court of Appeals were reversed in 1969 , the year he joined the court . One was Watts v. United States , in which the defendant had been convicted for threatening the life of the president . By a 5-4 vote , the Supreme Court reversed , holding that Watts ' supposed threats were really nothing but hyperbole . The decision came down one month before President Nixon nominated Burger . More significantly , after Burger had been confirmed , the Court reversed him again , this time in a major case -- Powell v. McCormack . The House had refused to seat Harlem , New York , Democratic Rep. Adam Clayton Powell after he won yet another election . The reasons for the House 's action were misappropriation of public funds and abuse of process in state courts to avoid paying a judgment . Burger wrote that federal courts could not decide Powell 's case because the issue was nonjusticiable -- that is , not appropriate for a judicial resolution because issues of membership in Congress were exclusively committed to Congress . When the case reached the Supreme Court , a lengthy opinion by Chief Justice Earl Warren held that courts could rule in such a case and that a House of Congress could only exclude someone if that person did not meet the qualifications , age , citizenship and residence requirements set forth in the Constitution . There was but a single dissent . The reversal of Sotomayor was expected because a majority of the current court are Republicans who believe governmental decisions should be made on a color-blind basis . Beginning with the presidency of Ronald Reagan , Republicans have taken aim at affirmative action , and the Republican justices have concurred . Only once in the past 15 years has the Republican majority voted in favor of minorities in an affirmative action case . That came in 2003 , when the court upheld the affirmative action program at the University of Michigan Law School . That case , however , was profoundly influenced by an amicus brief signed by 45 retired admirals and generals ( plus former Defense Secretary William Cohen ) stating that affirmative action was essential at the Service Academies in order to create a diverse officer corps in order to ensure necessary military cohesiveness . When asked about the military brief , Solicitor General Theodore Olson stated that he had not thought about the consequences of ending affirmative action at the Service Academies . That was enough for Justice Sandra Day O'Connor , a Republican , who switched from her normal skepticism of affirmative action to sustain the law school program . Nevertheless , four Republican justices -- William Rehnquist , Antonin Scalia , Anthony Kennedy and Clarence Thomas -- voted to invalidate the program . With John Roberts replacing Rehnquist and Samuel Alito replacing O'Connor , the court acquired a majority that appears more concerned about discrimination against whites than about racial equality in American society . Thus just two years ago in cases out of Seattle , Washington , and Louisville , Kentucky , the Republican majority invalidated school assignment plans that the school districts themselves had decided were appropriate to prevent resegregation . With those cases as background , the majority 's sympathy for the plight of Frank Ricci , who studied so hard for the New Haven promotion examination , was easily predictable . But so was the fact that the four dissenters in the Seattle and Louisville cases -- John Paul Stevens , Ruth Bader Ginsburg , Stephen Breyer and the now-retired David Souter -- would side with the city in its concern that the results of the test left no African-Americans eligible for promotion . What the New Haven case showed was that Republicans have been winning presidential elections and therefore gaining Supreme Court nominations more often than Democrats for the past generation . So when a Democratic president finally got a nomination , any person selected would dissent from the Republicans ' disdain for affirmative action . It is merely a coincidence that the nominee , Sotomayor , happened to participate in the case already . Some Republican senators may try to use the New Haven majority to paint Sotomayor as out of the mainstream . But that conclusion requires painting the four dissenters as out of the mainstream , too . Only the Republican base could believe that . Sotomayor will be confirmed without a hiccup . The opinions expressed in this commentary are solely those of Lucas A. Powe Jr .
Powe : Two Warren Burger rulings were reversed as he was about to join court . He says ruling in favor of New Haven firefighters was not a surprise . He says Sotomayor is not out of the mainstream since 4 justices were on her side . Powe : Justices named by GOP presidents generally oppose affirmative action .