Legal Commentary

Dan asked for initial thoughts on Ricci. I have not had a chance read it, but here are a few initial comments on the procedure and politics of the decision, piling on earlier comments from Media Matters and from Jonathan Adler.

First: Appellate courts get reversed; that's why we have a three-tiered judiciary (two in Nebraska) and appellate review. Reversal does not mean Judge Sotomayor was "wrong" in any normative sense; it means only that a majority of the higher court disagreed and (as Justice Jackson reminded us) is "right" only in the descriptive sense of having the last word. (I would recommend former guest Chad Oldfather's comments on lower-court error). Reversal does not reflect on Sotomayor's ability as a judge or her style of judging, anymore than her being affirmed would allow for the argument of "see, she was right". And I would hope that, at least, intelligent legislators and law-trained commentators will avoid making a mountain of a quite common event.

Second: Jonathan suggests that the short shrift the panel gave the case (originally wanting to affirm by non-precedential memorandum, then affirming with a one-paragraph precedential adoption of the district court's analysis) might reflect poorly on her judgment, but that it will not derail the nomination in the end. I am not sure I agree that it reflects poorly on her judgment any more than reaching a different conclusion reflects poorly on her judgment. The procedures through which appellate judges handle cases (argument or no, summary disposition or opinion, precedential or non-precedential) are one aspect of the resolution of those cases. And they may be just as disputed and just as subject to differences of opinion as the merits. There can be differences of opinion as to the importance or ease) of the case, just as to the merits. And just as disagreement with the outcome does not mean the appellate panel was wrong in any absolute sense, neither does disagreement with the process employed (or views about simplicity) mean the panel was wrong in any absolute sense in using (or attempting to use) that procedure. Especially since there are indications that the practice is quite common on the Second Circuit, suggesting other court interests and concerns (maintaining unanimity, something the Chief Justice purports to like) legitimately play a role in the choice of process. That the panel thought the case an easy one (and thus chose a particular procedure) and the Supreme Court disagreed does not tell me anything. And although I have not looked into this, I am fairly certain the Court occasionally takes cases that were subject to more-summary disposition below.

Third: The Media Matters piece points to several cases in which Alito was reversed while on the Third Circuit (including Planned Parenthood v. Casey), as well as Hamdan v. Rumsfeld, in which the Supreme Court reversed the D.C. Circuit panel (of which Roberts had been a member) after Roberts became Chief. No one suggested that those reversals made either unfit for the Court. Alito was probed about those reversals (especially Casey) to try to get a sense of his judicial philosophy; he also was asked about several cases in which the Supreme Court affirmed.

Fourth: To the extent Republican Senators and/or conservative commentators are able to make hay (whether real or just noise in the media) out of this reversal to cast doubt on Sotomayor's "judgment," I think it will be another illustration of why the conservatives and the GOP are better at the confirmation/judicial-politics game. Alito was reversed in Casey? Well that just shows how out of control the Supreme Court (especially Justice O'Connor, who Alito had been nominated to replace) is and why it was important to put good, smart "strict-constructionist," non-activist judges (such as Alito) on the Court. Sotomayor was reversed in Ricci? That just shows why she is an out-of-control activist who decided the case based on her own politics and not the law and who should not be on the Court.