In response to questioning by Senator Cornyn, Judge Sotomayor explained that, “When parties are dissatisfied, they file for rehearing en banc“–that is, a new hearing before all the judges on the Circuit. She continued: “That’s what happened in Ricci,” the case challenging New Haven’s discrimination against white and Hispanic firefighters.

Except it didn’t. Karen Lee Torre, counsel for the New Haven firefighters, decided to appeal the case straight to the Supreme Court, because the odds of persuading the entire Circuit to rehear a summary order are essentially zero–a summary order being a signal that a case presents no novel or significant legal issues.

Torre only learned that the case had been considered for rehearing when the court informed her that the request, which had been raised by Judge Cabranes after he read about the case in the newspaper, had been denied. It came as a real surprise.

It is true, as a legal matter, that the New Haven firefighters were not precluded from petitioning for rehearing. But it is wrong to state, as Sotomayor did, that there was any real chance of the court accepting the petition. Because after Sotomayor’s panel buried the matter with a summary order, that just was not going to happen.

And it is wrong to state, as Judge Sotomayor did, that the New Haven firefighters even thought they could buck those awful odds through en banc review. They knew that the Second Circuit wasn’t going to give their claims a fair hearing, so they chose to raise the issue to the Supreme Court, which (unlike Sotomayor’s panel) did what justice requires: addressing the case on the merits.