Bench Memos

Ricci v. DeStefano

This Friday, the Supreme Court is expected to decide whether to grant the petition of New Haven firefighters to review the Second Circuit panel decision in Ricci v. DeStefano.  In that decision, the Second Circuit panel rejected the firefighters’ claim that New Haven city officials violated their Title VII and equal-protection rights by throwing out the results of two promotional exams. 

As I’ve previously detailed, 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. (The dissent begins on the ninth page of this Second Circuit order.)  The dissenters clearly believe that the panel members tried to bury their disposition of the firefighters’ claims in order to prevent meaningful Supreme Court review, and they express their “hope that the Supreme Court will resolve the issues of great significance raised by this case” and their judgment that the firefighters’ claims are “worthy of [Supreme Court] review.”

Judged by the usual criteria, the firefighters’ certiorari petition (supported by its reply brief) would appear to have a very strong claim for Supreme Court review.  If there is any doubt, the justices ought to recognize that the shenanigans engaged in by the Second Circuit panel mean that this is not just any usual case.  The very fact that the panel members seem to have striven so hard, and resorted to such gamesmanship, to bury the firefighters’ claims and to prevent Supreme Court review provides an additional reason that the Supreme Court ought to grant review. 

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