Ricci Revisited:

Adam Liptak has an interesting article on Ricci v. DeStefano in the NYT. An excerpt:

Almost everything about the case of Ricci v. DeStefano — from the number and length of the briefs to the size of the appellate record to the exceptionally long oral argument — suggested that it would produce an important appeals court decision about how the government may use race in decisions concerning hiring and promotion.

But in the end the decision from Judge Sotomayor and two other judges was an unsigned summary order that contained a single paragraph of reasoning that simply affirmed a lower court's decision dismissing the race discrimination claim brought by Frank Ricci and 17 other white firefighters, one of them Hispanic, who had done well on the test.

Particularly notable is Liptak's discussion of what went on behind the scenes leading up to the summary order deciding the case.

The appeals court's cursory treatment suggested that the case was routine and unworthy of careful scrutiny. Yet the case turned out to be important enough to warrant review by the Supreme Court, which heard arguments in April and is likely to issue a decision this month.

The result Judge Sotomayor endorsed, many legal scholars say, is perfectly defensible. The procedure the panel used, they say, is another matter.

There is evidence that the three judges in the case agreed to use a summary order rather than a full decision in an effort to find common ground. Allies of Judge Sotomayor, who was the junior judge on the panel of the United States Court of Appeals for the Second Circuit, correctly point out that the Second Circuit often decides even significant cases with summary orders that adopt the reasoning of the lower court. They add that the panel's decision reflected a respect for precedent, though it cited none. Judge Sotomayor certainly made no suggestion at the argument that she was constrained by precedent to rule for one party or the other. . . .

In the end, according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise.

I find this last bit particularly interesting. The unpublished order resolved the case without creating binding precedent for the Circuit. Perhaps this was an acceptable compromise because the panel eventually concluded that a written opinion based upon the particular facts in this case could create a problematic precedent; hard facts make bad law, etc. Yet this was not the end of the matter. Once it was clear other judges on the Circuit disagreed with the panel's disposition, a per curiam opinion was published, adopting the district court's reasoning as binding circuit precedent. Therefore, the considerations that likely led the panel to issue the original unpublished order were no longer applicable. Indeed, if Liptak's account is accurate, it makes the Second Circuit panel's conduct seem worse than I had presumed. The very fact that the panel had such difficulty uniting around a single rationale for the case in the first place is, in itself, evidence that summary affirmance and adoption of the district court's rationale as Circuit precedent was inappropriate (a point Judge Cabranes stressed in his dissent from denial of rehearing en banc). No doubt this is not the last we have heard about this case and how it was handled.

UPDATE: In an essay about another case in which Judge Sotomayor joined a panel issuing an unpublished opinion, Miller v. New York, Emily Bazelon suggests why Ricci was initially resolved with an unpublished order.

The 2nd Circuit may have more than its share of unpublished opinions in hard cases for the sake of preserving unanimity. This might help explain why Sotomayor and the other two judges who heard the New Haven firefighters' claim resorted to a short opinion stripped of analysis. Perhaps in that case, too, there was a fragile consensus that Sotomayor or another judge was trying to maintain or a difference of opinion about the reasoning behind the holding in New Haven's favor.

Yet as I noted above, insofar as the Ricci panel chose to issue an unpublished order instead of publishing an opinion with precedential effect, this cannot explain (let alone justify) the panel's subsequent decision to issue a brief, per curiam opinion adopting the district court's decision as binding law for the circuit.

"What Really Happened" in Ricci:

Stuart Taylor may "admire many things about Judge Sonia Sotomayor," but his latest column raises concerns about the handling of Ricci v. DeStefano.

The panel's decision to adopt as its own U.S. District Judge Janet Arterton's opinion in the case looks much less defensible up close than it does in most media accounts. One reason is that the detailed factual record strongly suggests that -- contrary to Sotomayor's position -- the Connecticut city's decision to kill the promotions was driven less by its purported legal concerns than by raw racial politics.

Whichever way the Supreme Court rules in the case later this month, I will be surprised if a single justice explicitly approves the specific, quota-friendly logic of the Sotomayor-endorsed Arterton opinion.

Judge Jose Cabranes, Sotomayor's onetime mentor, accurately described the implication of this logic in his dissent from a 7-6 vote in which the full U.S. Court of Appeals for the 2nd Circuit refused to reconsider the panel's ruling.

"Municipal employers could reject the results of an employment examination whenever those results failed to yield a desired racial outcome -- i.e., failed to satisfy a racial quota," Cabranes wrote.

The Sotomayor-endorsed position allowed such a "race-based employment decision," Cabranes added, even though the New Haven exams were "carefully constructed to ensure race-neutrality" and even though the city had neither found nor tried to find a more job-related test.

The Cabranes dissent and the voluminous factual record that was before the Sotomayor panel flatly contradict the widely stated view that her position was justified by evidence that the exams were not job-related and that they discriminated against blacks in violation of the "disparate-impact" provisions of federal civil-rights law.

In fact, neither Sotomayor nor any other judge has ever found that the exams -- one for would-be fire lieutenants, one for would-be captains -- were invalid or unfair. Nor has any judge found that allowing the promotions would have violated disparate-impact law.

Rather, the Sotomayor-endorsed position was that under 2nd Circuit precedents, New Haven's discrimination against high-scoring whites must be upheld based solely on the fact that disproportionate numbers of blacks had failed to qualify for promotion and might file a disparate-impact lawsuit -- regardless of whether they could win it.

In my prior posts, I've raised greater concerns about the procedural handling of the case than the substance, but the two are related. Insofar as a ruling for the city could establish an extreme precedent -- which is Taylor's argument -- the belated switch from an unpublished affirmance without precedential effect to a published per curiam affirmance that would establish binding circuit precedent without any explanatory opinion, is harder to justify. I don't know how much Judge Sotomayor can say about how the case was handled during her hearings, but she is sure to be questioned about it, particularly due to news reports suggesting why the case was handled this way.

How Ricci Almost Disappeared:

Stuart Taylor has an interesting post on how the Ricci case almost evaded the attention of other Second Circuit judges, let alone the Supreme Court.