For all the publicity about the Supreme Court's 5-4 reversal of Judge Sonia Sotomayor's decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.

That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case -- which ended up producing one of the Supreme Court's most important race decisions in many years -- had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice.

In any event, any 2nd Circuit judge who had chanced to find and read the panel's summary order in Ricci would have found only the vaguest indication what the case was about.

But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters' lawyer, that she had expected "'a reasoned legal opinion,' instead of an unpublished summary order, 'on what I saw as the most significant race case to come before the Circuit Court in 20 years.'"

I'm not sure where you got this information, but if you mean that full opinions are circulated to the entire Second Circuit before publication, it is simply not true.  As a matter of course, full opinions are circulated only among the three-judge panel that heard the case.  Very rarely, a panel member will decide to circulate a full opinion to the entire bench. Otherwise, the only opinions circulated to the whole bench are those for which a party has filed a petition for rehearing en banc; the opinions are circulated along with the petitions.

Any judge on the court will be able to confirm this. You might also check with former clerks. Since this fact is important to your article, you should correct it ASAP.

The copies cost $20,000.00?  That can't be correct.  Are you sure the $20k figure doesn't refer to the total cost of the appeal to the SC (including legal fees?)

My understanding of this case is that the lower courts' rulings were consistent with precedent.  And the facts as I understand them would seem to justify adhering to the precedent.  I do not believe that summary judgments are illegal -- or even illicit.   Perhaps I am wrong, but a summary judgment was pretty logical. 

What made this such a great case seems to be that it afforded an opportunity to wrest back some of the loss of white privilege from the minorities, the colored folk as we used to call them when we were being charitable.  We've had our courts invaded over the past 8 years by guys/gals ready, willing and able to give this crappy SCOTUS an opportunity to overturn any number of precedents -- it could be a bumpy ride until we have enough court openings to restore justice to the Judiciary.  I'd suggest offering Bush appointees irresistible ambassadorships.  Or make 'em all astronauts and train them for our coming voyage to Mars. ( I hope that historians refer to this SCOTUS as the Nader Court since he facilitated the Bush ascendancy.  He should be sentenced to driving a seatbeltless Corvair for the rest of his days.)  Do you realize that we have a sitting Federal Judge with a lifetime appointment who debased himself enough to write a memo giving the 'color of law' to torture?  He should be impeached -- hell, he should have the character to resign -- but I think he's already established the quality of his character.  The quality of his reasoning was pretty specious as well. The idea that our country would do such a thing -- would countenance torture -- is personally offensive.  Not to mention a stupid, boneheaded, dumb and ignorant thing to do.  Of course, that was the M.O. in the last administration.  One has to award them some points for consistency.

I was raised in Birmingham, AL.  I was an unapologetic racist -- it was all around me.  Getting that out of me was a struggle and I came to see that, while slavery was a horrible wrong, Jim Crow and the softer racism of the last 30 years were, perhaps, more devastating to the minority community because we added insult to injury.  Racism went underground.  It became passive/aggressive.  (But it sure seems to be popping up right and left now.  Every other day another Republican politician circulates a racist joke like it was a cake recipe.  Amazing.  Wonder if it had anything to do with a Black President combined with latent racism that was just bubbling right below the surface.)  I have lived all over the South.  Spent my career working with the poorest of our societies laborers.  Worked with them as a peer in the beginning.  I know a little something about racism -- though I certainly never suffered it. I am white.  White privilege continues today.  Our work is not done.  It is not time to cast affirmative action aside.  But I am afraid that we have a judiciary that is primed to stamp out "reverse discrimination" and any other rightwing bugaboo. 

Conservatives used to decry Leftwing Victimhood.  Everybody was a 'victim' and had to be treated 'special.'  This earned their scorn.  Who are the victims now?  Rich, White Christians have become the true victims and, I guess, are warranted some affirmative action of their own.  At least the victims championed by the left had suffered some community wide injuries that seemed to justify considering them victims and due some type of compensation that reached beyond the immediate generation that suffered the direct injury.  I really fail to see the injury to white people as a class that justifies claims of reverse discrimination.  Sure do hear a lot of whining though.

This case should have suffered it's initially intended fate. This may not be the last time an eagle-eyed Federalist sees an opportunity to return privilege to its rightful owner.  Whitey's been down so long but we shall overcome.

Thank you, Mr. Taylor, for such an illuminating article.

Makes me think of the ending of, Indiana Jones and the Lost Ark where the warehouse worker plods along pushing a cart on which a crate containing the Ark of the Covenant sits to be stowed away for presumable perpetuity.

Gratitude goes out to Judge Carbanes and especially Ms. Torre.  I'm heartened to realize there are people like that still around.

I'm very angry about your betrayal, Stuart. Every other legal academic is on the bandwagon -- and the ones that aren't have the good sense to stay mum, knowing what's good for them.

May the batteries in your Prius go flat!

Full opinions are published, and they are circulated to the full Second Circuit. The order in which those events occurs varies and is unimportant."

I"m prejudiced against the judiciary, but even I can't swallow the notion that the Second Circuit publishes the opinions and ONLY THEN circulates them among the full circuit ("the order in which these events occurs varies.")  That's "Ready! Fire! Aim!" with a vengeance. Please, either straighten me out, or confirm my prejudices against the judiciary.

Sincerely yours,

Gregory Koster

(not of CUNY)

I hope Joe the Plumber gves his two cents and then The Quit Bull, Sant Sarah (kudos to Sadly no!) quits again!

What an injustice might have been done. I hope they send Sotomayor to Guantanamo.

I wonder how many legal beagles would jump on the chance to line their pockets with the $$$ that would be awarded to a "minority" plantiff if a white male made these types of comments when in a position such as that of Soto... I'm sure you would see Rev. Sharpton, Jesse Jackson and the rest of the crew spouting their "expert opinion" over how racism is still alive....Regardless, where I work (municipal gov't) if a white male made a statement like that, I am almost certain that there would be hell to pay. Days off (without pay) during the investigation, a grievance board hearing, sensitivity training, etc.........What a crock..........

"My understanding of this case is that the lower courts' rulings were consistent with precedent." 

 Well, not exactly, mb . . .depends on what the meaning of "consistent with" is.  As Judge Jose Cabranes stated, it was a case of first impression.

Even judges voting against the rehearing en banc seemed to agree, stating that it was not unheard of for Federal District Court cases to be elevated to the status of the statement of the law for the entire circuit through the issuance of a short affirmance, i.e. a per curiam opinion.  And that is precisely what happened in this case.  A lowly summary order was converted into a per curiam opinion, and thus became the "law" for the entire circuit. 

But it was done under odd circumstances, and four months after the issuance of the summary order.  From unceremoniously "buried in a shallow grave" all the way up to "the word in the circuit" -- just like that.

One cannot help wonder if that conversion was not compelled because one or more of the appeals judges raised the potential applicability of the 2nd Circuit's Local Rule 32.1(a), as was noted by Stuart Taylor in his commentary. 

Imagine, if you will, a Court Rule that even judges themselves may not talk about, except in the context of a written opinion?  One wonders if compliance with that rule requires each of the judges in such a case to file some sort of "check-off" paperwork averring that each one "believes that no jurisprudential purpose would be served by an opinion."

If they had no record of having done so, that would certainly explain why the sudden and belated "conversion" of the Ricci summary order, word-for-word, into a per curiam opinion.  Which Senator will raise the question?

Good work, Stuart, not only on this commentary, but on the several illuminating pieces you wrote about this case.

Your comment is quite illuminating about the internal process for the "circulating" -- or not -- of opinions and other materials to the other judges in the Circuit.   I would imagine that the technological changes of recent years have made a workable system for the circulation of materials a good deal easier to implement -- such as the immediate electronic circulation of opinions, orders -- whatever -- which could potentially be done throughout the entire federal judicial system, for that matter.

But I was particularly struck where you noted the following:

"I do agree with your point, however, that the Ricci panel attempted to "bury" the decision by implying that it had no precedential importance."

Is it possible, perhaps even probable, that the decision to exhume the summary order and recast it as a per curiam opinion, was taken because one or more of the other judges on the Second Circuit, formally (or otherwise) raised a question about the applicability of the Second Circuit (Local) Rule 32.1(a), and asked whether there was some sort of record of the determination to issue a summary order? 

When a decision is taken by a three judge panel to issue a summary order in a case, it is quite plain whether or not it is "unanimous." 

But is there some sort of record kept, or way of memorializing each judges' finding that "no jurisprudential purpose would be served by an opinion" -- however the rule is precisely phrased?

If so, would it not be a relevant question for some Senator on the Judiciary Committee to ask for a copy of that record?  And if not, would it not be a relevant question for some Senator on the Judiciary Committee to ask Judge Sotomayor how she arrived at her conclusion? 

And, further, what specifically motivated her and the other judges on the panel to so dramatically change their minds fully four months later?

This is a striking contrast to the treatment afforded Sotomayor by most reporters.  See, for instance, the unwillingness of Nina Totenberg of NPR or Emily Bazelon of Slate to mention these matters.

The Republican Senators of the Judiciary Committee seem determined to take their cues from the Totenbergs rather than the Taylors.  That's a loss for all of us.

And now, to MB, 7/10, 8:02 p.m.:

“My understanding of this case is that the lower courts' rulings were consistent with precedent.”

Your understanding is wrong.

“Perhaps I am wrong, but a summary judgment was pretty logical.”

No perhaps about it. 

Now consider this. The Ricci case was widely deemed to be the most important discrimination case to come before the Second Circuit in years — perhaps decades. As Judge Cabranes pointed out in his dissent from the full Second Circuit's decision not to rehear the case, Ricci featured "unusually lengthy briefs from the parties, amicus briefs, an 1,800-page record, and an hour of oral argument, all well beyond the norm" (most arguments before the Second Circuit are about ten minutes per side).

You can argue the result in Ricci. You can't defend burying the case without a published, reasoned decision.

I think Andy is correct,  And how  much more puzzling is it that the three judge panel actually took two inconsistent approaches, without any explanation whatsoever?  They issued the summary order relegating it to a relatively meaningless status, then without any explanation converted it to a per curium opinion four months later, which suddenly elevated the district court case to the statement of the law for the entire circuit! 

Should she not be asked to explain that?

It would be really nice for you to uncover something like that.