Bench Memos

Ricci Shenanigans

Ed Whelan has rightly referred to Judge Sotomayor’s dismissive procedural treatment of the Ricci case—in which the panel simply affirmed on the basis of the district court opinion in a single paragraph instead of actually issuing a substantive opinion—as “shenanigans.” Stuart Taylor has a must read commentary explaining just how this procedural maneuver very nearly shielded the case from Supreme Court review.  Because summary orders are not circulated to all circuit judges in the same way as full opinions, Clinton appointee Judge Cabranes only found out about the Ricci case by reading about it in a local newspaper.  Given the importance of the issues, he sought review of the decision by the full (en banc)court.  As Taylor notes, Cabranes’s en banc request and blistering dissent from the en banc court’s decision not to hear the case brought Ricci “forcefully” to the Supreme Court’s attention.  Were it not for Cabranes’s opinion, it is far more doubtful that the summary disposition in Ricci would have caught the attention of the Court among the 7,000-plus other petitions vying for review.

Taylor also raises questions as to whether the summary treatment by the panel comports with Second Circuit Local Rule 32.1(a), which provides that a panel may dispose of a case “by summary order instead of by opinion” only “in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect).”  In light of Judge Cabranes’s dissent from denial of en banc, in which he emphasized that the case raised significant issues never before decided in the Second Circuit, and the Supreme Court’s decision not only to take the case but to reverse the opinion below, it would be hard to say that there was no jurisprudential purpose in even bothering to issue an opinion.  Indeed, it is difficult to see the purpose in disposing of the case by summary order, other than to make sure that it didn’t see the light of day.

Robert Alt is the president and chief executive officer of The Buckeye Institute.