Correcting The Record
Judge Sotomayor and Her Colleagues Acted Reasonably in Ricci v. DeStefano, Showing Restraint and Following Precedent As She Has Always Done
RHETORIC: Today, Senator Kyl suggested that the opinion Judge Sotomayor joined in Ricci v. DeStefano, the firefighter discrimination case, was not based on precedent, and that the Supreme Court overwhelmingly overruled her opinion.
JUDGE SOTOMAYOR responded to a question Tuesday about the Ricci decision saying: “The issue was not what we would do or not do, because we were following precedent, and you, when on a circuit court, are obligated on a panel to follow established circuit precedent.” She reaffirmed the controlling precedent today.
The Second Circuit panel in Ricci was simply following established precedent.
REALITY: The panel decision Justice Sotomayor joined in Ricci followed clear precedent, and it would have been improper “judicial activism” not to. That is why Second Circuit Judge Barrington Parker, a Republican appointee, in concurring with the Circuit’s decision not to rehear the case, highlighted the “controlling authority in our decisions” that made clear that state and local governments could take race into account in order to prevent discrimination under Title VII.
The Supreme Court created a new legal rule in Ricci; it would have been inappropriate for Judge Sotomayor’s Second Circuit panel to do so.
REALITY: The four dissenting justices in Ricci expressly noted, as have many observers, that the Supreme Court majority created a “new legal rule.” (Ricci dissent; Linda Greenhouse, The New York Times, June 30, 2009) The majority expressly adopted a “strong basis in evidence” test never before applied to Title VII cases. This decision reversed two acts of Congress, two Republican Presidents, and nearly 40 years of settled law.
The Supreme Court’s narrow 5 to 4 decision in Ricci makes clear how close the case was.
REALITY: Critics, parroting partisan outside commentators, have asserted that all nine Supreme Court justices acknowledged in Ricci that the Second Circuit’s decision was incorrect. This is a fundamental misreading of the Court’s 5-4 decision. It ignores statements from the four dissenters indicating that they would have reached the same conclusion as the Second Circuit and they recognized that the Second Circuit was bound by controlling precedent when it made its decision.
REALITY: Justice Souter, who Judge Sotomayor would replace if confirmed, joined the dissent in Ricci. Had Judge Sotomayor been on the Supreme Court, the result in the case would not have changed.
Judge Sotomayor was but one judge among many who held for the defendants in Ricci.
REALITY: Judge Sotomayor was one member of a seven-judge majority of the full Second Circuit and a unanimous three-judge Second Circuit panel that upheld the district court’s 48-page decision in Ricci. The Sixth Circuit arrived at the same decision in a nearly identical case, which was also decided by summary order.
Unpublished summary orders like that in Ricci are standard practice in the Second Circuit.
REALITY: The Second Circuit decides the vast majority—75 percent—of its cases by summary order. Where a district court’s decision is controlled by longstanding precedent, as it was in Ricci, such orders are particularly common. This case only became prominent when the Supreme Court took it to consider whether or not to change that longstanding law, which it ultimately did.