Posted by Jonathan Adler:
*Ricci* Revisited:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244327574
Adam Liptak has an [1]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.
References
1. http://www.nytimes.com/2009/06/06/us/politics/06ricci.html
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