Category: 
by C. William Chattin
In an earlier post, I warned the Right to “be wary not to dwell on [Sotomayor's] dismissive treatment of Frank Ricci.” Upon the Supreme Court issuing the Ricci v. DeStefano decision today and the media’s complete misunderstanding of it, I hereby withdraw my earlier admonishment.
The one and only thing that should be understood about this case as it relates to Judge Sotomayor’s nomination is that all nine members of the Supreme Court found that Sotomayor’s court was in error. Press reports that the Court “ruled against Sotomayor 5-4 along partisan lines” fundamentally misrepresent the decision issued today.
To understand exactly what happened, it’s crucial to go through the procedural history of the case.
Upon the completion of the fact-finding portion of the case (discovery), the plaintiff firefighters and the defendants, the City of New Haven and its mayor (DeStafano), each moved for summary judgment — a ruling by the court that they were entitled to judgment as a matter of law, without the need for a trial.
The trial-level court granted summary judgment to New Haven and denied summary judgment to the firefighters. The decision effectively ended the lawsuit.
That decision was then appealed to the 2nd Circuit Court of Appeals, where, as is its custom, a panel of three of the justices would rule. Judge Sotomayor was the senior member of that panel, which issued what’s called a summary order affirming the lower court’s decision. Summary orders provide no detail of the case and cannot be appealed any further (meaning, to the Supreme Court).
At this point, the firefighters’ case was dead forever, but for one judge on the 2nd Circuit Court of Appeals (who wasn’t on this 3-judge panel) demanding that the case be heard by the entire 2nd Circuit (en banc). Sotomayor’s panel thus withdrew its summary order and instead issued a unanimous per curiam opinion. That opinion, probably written by Judge Sotomayor, was eight sentences long, essentially analysis-free and likewise affirmed the lower court’s decision. An appeal thereafter to have the entire Circuit reconsider that opinion en banc was denied by a vote of 7-6. Judge José Cabranes and Chief Judge Dennis Jacobs wrote opinions in dissent from the denial of rehearing, urging review by the Supreme Court.
In any event, if not for the objection of one judge after Sotomayor’s original summary order, the firefighters would have had no further recourse. But Judge Sotomayor was forced to withdraw her summary order, thus allowing appeal to the Supreme Court, which today issued its 5-4 opinion.
The media has spun the 5-4 margin as a narrow defeat of Judge Sotomayor’s position. Such a conclusion is not only false, but ridiculous.
The majority opinion of 5 judges not only reversed the trial court’s grant of summary judgment in favor of New Haven, but also reversed the trial court’s denial of summary judgment to the firefighters and instead granted summary judgment in their favor. Because of the Supreme Court’s decision, the case is still effectively over (without the need for a trial), but this time the firefighters won as a matter of law.
The dissenting opinion, written by Justice Ginsburg and signed onto by 4 justices, disagreed with majority’s grant of summary judgment in favor of the firefighters, but agreed with the reversal of summary judgment in favor of New Haven.
In other words, all nine justices agreed that summary judgment should not have been granted in favor of New Haven, a finding that Sotomayor had affirmed twice — once by summary order and once in an analysis-free, eight-sentence opinion. Justice Ginsburg also found that Sotomayor’s court had used the wrong standard: “The lower courts focused on [New Haven]’s ‘intent’ rather than on whether [New Haven] in fact had good cause to act.”
Needless to say, it’s troubling that a nominee for the Supreme Court would sign on to (and probably write) two analysis-free decisions that all nine members of the Supreme Court found was not only in error, but apparently predicated on the wrong standard.
