by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Judge Sotomayor’s critics seem a little schizophrenic. On one hand, she is cast as a “judicial activist” who will rule based on feeling or that dreaded quality of “empathy.” Yet these same critics decry her decision to join the unanimous panel ruling in Ricci v. DeStefano. She is labeled unjust—unpatriotic, even—for failing to side with the Ricci plaintiffs, white firefighters in New Haven who studied hard to score highly on a promotion exam only to have the test scrapped by the City when it was shown to have a severely disproportionate impact on minority test-takers.

But Ricci should be a comfort to those suspicious of “judicial activism”—Judge Sotomayor joined the Second Circuit’s per curiam (unsigned) opinion, which noted the judges’ great sympathy for the firefighter-plaintiffs but nonetheless ruled against them based on clear precedent and established law. Indeed, a close look at the case shows Judge Sotomayor to be a restrained jurist who, even in a case such as this involving hot-button issues and extraordinarily sympathetic parties, makes decisions based on the law and objective facts.

As anyone following Judge Sotomayor’s nomination knows by now, Ricci v. DeStefano is a case currently before the Supreme Court that challenges the City of New Haven’s decision to throw out a test for promotion to captain and lieutenant positions in the New Haven fire department because the test had a significant disparate impact on minority test-takers (no African Americans and only two Hispanics qualified for the promotions based on the exam). The City never handed out the promotions, but instead went back to the drawing board to try to find a test that would give all applicants a level playing field on which to compete, in keeping with the requirements of federal anti-discrimination laws. Frank Ricci, the lead plaintiff in the lawsuit, is dyslexic and went to great lengths to study for and ultimately do well on the promotion exam. He claims that the City’s decision to redesign the test violated his constitutional right to equal protection as well as Title VII of the Civil Rights Act of 1964, which prohibits racial discrimination in employment. Title VII requires employers to consider the racial impact of their hiring and promotion procedures in order to prevent discrimination that’s inadvertent as well as intentional.

The federal district court that first considered Mr. Ricci’s claims exhaustively reviewed the facts and allegations and determined that Ricci’s lawsuit was foreclosed by settled law. The racially disparate results of the test far exceeded the statistical cut-off indicating that a Title VII violation had occurred, and the district court found that when the City decided not to use the results of the promotion exam, it was trying to comply with Title VII’s prohibition on the use of employment tests that have such a disparate racial impact. Rather than discriminating against the white test-takers, the City was simply trying to find a promotion test that would be fair to all applicants as required by federal law. The court held that this attempt to ensure a fair promotion process and comply with Title VII was not equivalent to discrimination and was not intentional discrimination against the white plaintiffs in violation of equal protection.

On appeal in the Second Circuit, a three-judge panel, including Judge Sotomayor, unanimously agreed with the district court. In a brief order, later published, the panel affirmed the dismissal of Ricci’s case “for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.” The judges expressly stated that “[w]e are not unsympathetic to the plaintiffs’ expression of frustration,” noting that Mr. Ricci is dyslexic and had “made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated.” But no matter how sympathetic Mr. Ricci’s claims, “it simply does not follow that he has a viable Title VII claim.” However heartless the City’s refusal to act on the exam results may have seemed to the plaintiffs and their supporters, New Haven was “simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact” and its actions were protected by law. In other words, the case wasn’t about how sympathetic Mr. Ricci was—it was about the law.

So much for the charge of “judicial activism.” But another criticism has been hurled at Judge Sotomayor over the Ricci case: the fact that the three-judge panel issued a short, unsigned opinion that adopted the reasoning of the district court. The implication of this criticism is that the panel of judges, including Sotomayor, punted on the difficult legal questions or wanted to avoid drawing attention to their ruling.

Unfortunately for the conspiracy theorists, there is a much simpler explanation: the panel of judges considered itself bound by Second Circuit precedent, which was discussed at length by the district court, and issued a summary order pursuant to Second Circuit Rule 32.1 that adopted the district court’s reasoning. That Rule allows for summary orders when “no jurisprudential purpose” would be served by publishing a lengthy opinion; if a case is controlled by existing precedent, then “no jurisprudential purpose” is served by publishing an opinion. This practice is far from unusual: the Second Circuit Handbook notes that approximately 75% of the Circuit’s cases are disposed of by summary order. (The practice isn’t even unusual in the specific context of these sorts of discrimination claims: the Sixth Circuit Court of Appeals issued an unpublished decision in Oakley v. City of Memphis, 2008 WL 4144820 (2008), rejecting arguments that the City of Memphis violated Title VII when it refused to act on promotion exam results that had a disparate impact on minority test-takers, citing the district court’s opinion in Ricci in support.) The Ricci panel then converted the exact text of this order—the only addition was a citation to the district court’s opinion—into a published per curiam order, and the dissents from rehearing en banc (which disagreed with the panel’s ruling and initial decision to issue a summary order) were published on the following page of the Federal Reporter. It is unsurprising that this published order would be an unsigned, per curiam order, given that the panel was adopting the exhaustive reasoning of the district court. And, as noted by one of Judge Sotomayor’s colleagues, Judge Parker, there is also nothing unusual about adopting the reasoning of the district court in a published per curiam opinion—the court has been doing so for over a century, even in high-profile cases.

The Ricci appellate panel’s short affirmance of the lower court’s decision was particularly appropriate because, as the district court discussed in detail, there was clear Second Circuit precedent governing the legal issues in the case. In Bushey v. New York State Civil Service Commission, 733 F.2d 220 (2d Cir. 1984), the Second Circuit held that New York could take voluntary steps to remedy the disparate racial impact of a promotion exam in the corrections department and rejected the white plaintiffs’ “reverse discrimination” argument. In a ruling directly bearing upon the later Ricci case, the Bushey panel held that “a showing of a prima facie case of employment discrimination through a statistical demonstration of disproportionate racial impact constitutes a sufficiently serious claim of discrimination to serve as a predicate for employer-initiated, voluntary race-conscious remedies.”

Similarly, in Hayden v. County of Nassau, 180 F.3d 42 (2d Cir. 1999), the Second Circuit affirmed the dismissal of a challenge brought by a group of white and Latino police department applicants, who claimed that their equal protection and Title VII rights were violated when the County deliberately designed an entrance exam to minimize discriminatory impact on black candidates. The Hayden panel found the equal protection argument—that keeping racial factors in mind when designing the testing process renders the exam an impermissible “racial classification”—“wholly without merit.” Hayden held that an employer’s desire to have an employment test that diminishes adverse impact on minority applicants is not a “racial classification,” is not subject to strict scrutiny, and is not “reverse discrimination.” The Hayden panel cited the district court in that case for this controlling proposition: “where an exam that discriminates against a group or groups of persons is reviewed, studied and changed in order to eliminate, or at the very least, alleviate such discrimination, there is a complete absence of intentional discrimination.”

Whatever one’s view of what the Second Circuit should have done in those earlier cases or what the Supreme Court should do now that it has Ricci under review, it should be clear that Judge Sotomayor and her fellow judges on the Ricci panel were well within reason to consider their decision controlled by existing Second Circuit precedent, in particular the Hayden and Bushey cases discussed above. This precedent was long-standing—over two decades—and certainly not the result of “liberal judicial activism”—every Second Circuit judge on the Hayden and Bushey panels had been appointed by a Republican. It is unclear what Judge Sotomayor’s critics would have had her do in the case—disregard precedent and rule for Frank Ricci because she was sympathetic to his claims that he had worked hard and deserved a promotion? Issue a long and detailed ruling rehashing legal points already established by previous Second Circuit cases and given a thoughtful review by the district court? We think most Americans would prefer to have judges who are committed to the rule of law and judicial restraint.