Bench Memos

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This Day in Liberal Judicial Activism—February 15


2008—In Ricci v. DeStefano, a Second Circuit panel issues a summary per curiam order that rejects the claim by New Haven firefighters that city officials violated their Title VII and equal-protection rights by throwing out the results of two promotional exams.  On the panel is Judge Sonia Sotomayor, who has been thought by many to be a leading contender for a Supreme Court appointment in the Obama administration.

A few months later, the Second Circuit votes 7 to 6 to deny en banc rehearing in Ricci.  A remarkable dissent, written by Clinton appointee José Cabranes and joined by his five dissenting colleagues, indicates that Sotomayor and her colleagues engaged in an extraordinary effort to bury the firefighters’ claims:  In a case in which the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” in which two amicus briefs were filed, and in which oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which gives the reader virtually no sense of what the case is about.  Then, just three days before Cabranes issues his opinion (and in an apparent attempt to preempt it), “the panel withdrew its summary order and published a per curiam opinion that contained the same operative text as the summary order, with the addition of a citation to the District Court’s opinion in the Westlaw and LexisNexis databases.”  As Cabranes sums it up:

“This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit.  It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal.  Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.”

And then this killer understatement:  “This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.”

In January 2009, the Supreme Court grants review of the Second Circuit ruling.  A Supreme Court decision is expected by the end of June 2009.

Tags: This Day in Liberal Activism


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