One criticism of Judge Sonia Sotomayor regarding the Ricci case is that her decision to join an unpublished summary disposition of the case showed a lack of judgment. If the Supreme Court found the case cert-worthy, some argue, then it was certainly worth more than a one-paragraph, unpublished summary order, right? Perhaps. Cases disposed of by unpublished summary orders or opinions rarely involve weighty or controversial issues, or questions of first impression. They tend to be the more straight-forward cases, or else involve peculiar fact patterns that are unlikely to recur. So these are not the sort of cases one would expect to go up.
Supreme Court review of unpublished summary orders is rare – usually not more than one or two a term, if that -- but it’s not unheard of. One example that I’m surprised I have not seen discussed elsewhere (although it was just brought to my attention) is Thomas Jefferson University v. Shalala, 512 U.S. 504 (1994), in which the Supreme Court reviewed an unpublished order, issued without opinion, by the U.S. Court of Appeals for the Third Circuit. As with Ricci, the panel included a future Supreme Court nominee (Samuel Alito) and the Supreme Court divided 5-4. In this case, however, the panel’s opinion was affirmed, and the line-up was decidedly non-ideological. Justice Kennedy wrote the majority opinion, joined by Chief Justice Rehnquist and Justices Blackmun, Scalia, and Souter, Justice Thomas dissented, joined by Justices Stevens, O’Connor, and Ginsburg.
Are the cases distinguishable? I think so. At the time the Third Circuit rendered its judgment in Thomas Jefferson, it’s not clear the judges had any reason to see the case as particularly significant. It did not address a hot button or politically contentious question nor was there yet a circuit split. It’s hard to fault judges for not recognizing the potential importance of a lawsuit challenging the Secretary of Health and Human Services’ interpretation of the anti-redistribution principle embodied in §413.85(c) of the regulations governing Medicare reimbursement for hospital providers. Contrary to the suggestion in Justice Kennedy’s opinion for the Court, the Third Circuit’s opinion came out several weeks before the U.S. Court of Appeals for the Sixth Circuit went the other way.
Does the fact that Judge Alito joined a summary order that the Supreme Court both found worthy of review and divided closely over indicate that too much is being made of Ricci? Yes and no. It’s easy to make too much out of a single case, and there’s much more to Judge Sotomayor’s record than Ricci. One case should not make or break a nomination, and his involvement in the Thomas Jefferson University case (had it received attention at the time) would hardly have suggested Judge Alito did not merit confirmation.
I think the Second Circuit’s handling of Ricci merits criticism (and felt this way before Judge Sotomayor was nominated to the Supreme Court), but do not feel it justifies opposing her confirmation. It was easy to see Ricci was an important and difficult case from day one. Indeed, Adam Liptak’s reporting suggests the judges themselves had difficulty with it. Perhaps the facts that made it a tough case justified disposing of it with a non-precedential order, but (as I’ve noted before) this can’t explain the panel’s subsequent decision to publish its summary opinion once Judge Cabranes called for en banc review. At that point there was no longer any question that the case merited greater consideration than a single paragraph.
The Second Circuit’s handling of Ricci merits criticism, but it should not be overdone. Judge Sotomayor made the wrong call here, as did two of her colleagues. But this is revealed by the details of the case, and not just the Supreme Court’s subsequent review and reversal. Even the best appellate judges may fail to appreciate how the Supreme Court will view a case. And finally, it's clear Ricci is receiving more attention because of what it's about, than because of how it was handled below. If a case involving §413.85(c) had been handled precisely the same way, it's entirely possible most of us would still not have heard about it.