Bench Memos

NRO’s home for judicial news and analysis.

Grant of Certiorari in Ricci v. DeStefano


I’m delighted to see that the Supreme Court granted review today of the Second Circuit’s panel decision in Ricci v. DeStefano.  In that decision, the Second Circuit panel rejected 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. 


As I’ve previously detailed (and will in large part repeat here), the Second Circuit’s narrow 7-6 denial of en banc rehearing in Ricci was accompanied by a remarkable dissent, written by Clinton appointee José Cabranes and joined by his five dissenting colleagues, that exposed some apparent shenanigans by the three panel members and the district judge.  (Cabranes’s opinion begins on the ninth page of this Second Circuit order.)  One of those panel members was Sonia Sotomayor, who has been thought by many to be a leading contender for a Supreme Court appointment in the Obama administration.


Judge Cabranes’s account 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.  Four months later, just three days before Cabranes issued 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reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit.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.


That’s quite an indictment—by a fellow Clinton appointee, no less—of Sotomayor’s unwillingness to give a fair shake to parties whose claims she evidently dislikes.  And, whatever the Supreme Court’s ultimate disposition, its decision to grant review of a case that Sotomayor treated in such a perfunctory manner ratifies Cabranes’s indictment.  Hardly the mark of a jurist worth serious consideration for the nation’s highest court.

Tags: Whelan


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