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 The unpublished order resolved the case without creating binding precedent for the Circuit.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.