Tuesday, July 14, 2009

An Unpublished Summary Order Can't Be Defended in Ricci   [Andy McCarthy]

Judge Sotomayor continues to try to defend the manner in which her panel buried the Ricci case by unpublished summary order. She claims that she was operating under clear precedent — but there wasn't clear precedent, and her peremptory order didn't cite any. But let's give her that one. Sotomayor has issued scores of opinions on legal issues in which the outcome was clear, controlled by obvious precedent — that didn't stop her from writing an opinion.

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.

07/14 12:04 PMShare