The chief complaint with Judge Sonia Sotomayor’s handling of Ricci, the New Haven firefighters case, is not that her court reached the wrong result but that it shirked its duty to give the case its full consideration, in an obvious attempt to bury it.
That effort, of course, did not work, and the Supreme Court released an elegant decision in the case by Justice Kennedy, who hints at the strangeness of Sotomayor’s handling of the case. His description:
After full briefing and argument by the parties, the Court of Appeals affirmed in a one-paragraph, unpublished summary order; it later withdrew that order, issuing in its place a nearly identical, one-paragraph per curiam opinion adopting the District Court’s reasoning. Three days later, the Court of Appeals voted 7 to 6 to deny rehearing en banc, over written dissents by Chief Judge Jacobs and Judge Cabranes.
Very unlike Sotomayor’s court, the Supreme Court saw the importance of the case and the major issues that it presented instantly, recognizing that it was one of the very, very few cases worthy of a place on the Court’s docket.
This action presents two provisions of Title VII to be interpreted and reconciled, with few, if any, precedents in the courts of appeals discussing the issue. Depending on the resolution of the statutory claim, a fundamental constitutional question could also arise. We found it prudent and appropriate to grant certiorari.
Yes, it is significant, and objectionable, that Judge Sotomayor chose to endorse what the Supreme Court found to be a transparently discriminatory practice on the part of New Haven when it sought to deny promotions to firefighters because of their skin color.
But it is, in a way, even worse that her court refused to give the case a fair hearing and reasoned decision—something that she would do again in Maloney v. Cuomo by declining to provide any consideration of whether the Second Amendment right to self-protection is a “fundamental” right that must be observed by the states. Doing justice, after all, is the duty of a judge. Shirking tough or inconvenient cases is incompatible with the judicial role.