2008—By a vote of 7 to 6 (in Ricci v. DeStefano), the Second Circuit declines to rehear en banc an appeal brought by 20 firefighters (19 white and one Hispanic) who charged that New Haven city officials violated their Title VII and equal-protection rights by throwing out the results of two promotional exams. In a blistering dissent (issued three days later), Clinton appointee José Cabranes exposes the shenanigans of Second Circuit judge Sonia Sotomayor and her two colleagues on the panel that decided the appeal.

Judge Cabranes’s account indicates that Sotomayor and company 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, “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reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit.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.

Cabranes invites the Supreme Court’s review of the decision that the panel initially treated as too insignificant even to publish, and in January 2009 the Court grants review. The Court’s decision is expected by the end of June 2009.