It's ironic that, of the hundreds of cases in which Judge Sonia Sotomayor has written opinions in her years on the federal Second Circuit Court of Appeals, the cases for which she's received the most criticism are opinions she didn't author. We explored Doninger v. Niehoff Thursday and Friday. Today we'll look at Ricci v. DeStefano, the firefighter case that had Sean Hannity opining on the doctrine of stare decisis. Because of course he's a legal scholar, right?
More below the fold....
Hannity a Legal Scholar? Hardly.
FOX News host Sean Hannity weighed in on the doctrine of stare decisis yesterday. Specifically, Hannity argued that judges don't always have to follow precedent. Well, true. But in general we want them to, because otherwise the law can become very arbitrary. More on that in a moment.
Hannity is exercised about the Second Circuit court's decision in the case of Ricci v. DeStefano, the New Haven firefighters case. Seneca Doane wrote about the Ricci case on Wednesday, citing a Salon article by Richard Thompson Ford. Seneca Doane is a lawyer, and Ford is a law professor. Both articles are worth reading.
Hannity, by contrast, dropped out of NYU and Adelphi University to pursue a career in radio. There's nothing wrong with that. You don't need a degree to work in the media. Walter Cronkite dropped out of the University of Texas to start his reporting career. But in weighing commentary on a complex legal issue, it's worth asking if the person has any training in the law.
The Ricci decisions:
Decisions, plural, because you can't get much from the Second Circuit's opinion. To understand the case, you need to examine the trial court's opinion, because the Second Circuit issued a PCA: a per curiam affirmed opinion. The three-judge panel looked at the trial court's decision and collectively said "We agree." Judge Sotomayor did not author this opinion, as per curiam ("by the court as a whole") opinions are not signed. Here is the entire Second Circuit opinion, with the citation [elided] for clarity:
We affirm, for the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below. [...] In this case, the Civil Service Board found itself in the unfortunate position of having no good alternatives. We are not unsympathetic to the plaintiffs’ expression of frustration. Mr. Ricci, for example, who is dyslexic, made intensive efforts that appear to have resulted in his scoring highly on one of the exams, only to have it invalidated. But it simply does not follow that he has a viable Title VII claim. To the contrary, because the Board, in refusing to validate the exams, was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact, its actions were protected.
CONCLUSION
The judgment of the district court is AFFIRMED.
Mr. Ricci then moved for a rehearing en banc - by the entire Second Circuit panel - which led to a 72-page written debate among the panel (summary here). The Second Circuit ultimately voted 7-6 not to rehear the case, and it is pending review before the U.S. Supreme Court.
While some on the Second Circuit objected to the PCA ruling, the ruling itself explains why Judge Sotomayor's panel did not write an exhaustive opinion: the trial court's decision is remarkably thorough and well-written, and also consistent with both statute and precedent. If Judge Sotomayor's panel saw no reason to reverse the decision - and they didn't - there was less reason to reinvent the wheel by rewriting what was already a brilliant analysis of the law. Instead, they incorporated it into their own holding. The per curiam opinion is not, as some allege, a slight to Mr. Ricci and his co-plaintiffs. It's a credit to District Judge Janet Bond Arteron's exceptionally clear analysis of a very complex legal issue.
New Haven tried not to discriminate.
The Ricci case is one where the city tried not to discriminate in promoting its firefighters. Historically, employment and promotion in the fire department had been based on political patronage. New Haven set out to stop that practice, by basing promotion decisions on standardized examinations. Indeed, neither the city nor its fire department wrote the tests; they contracted with an independent testing firm to create both a written test and an oral exam, and to standardize grading for both. The city and the fire department agreed on a weighting to be assigned each exam, and on the promotion criteria based on the exam scores.
Then the plan went awry. While roughly 60% of white candidates passed the tests, only 32% of blacks and 20% of Hispanics passed. Under EEOC guidelines, those statistics made a prima facie showing of a "disparate impact," where a standard seems neutral on its face, but in practice works to disadvantage a legally protected group. The city had two choices: (1) use the tests, make the promotions, and be sued by minority candidates for disparate impact; or, (2) disregard those tests, make no promotions, devise a new set of tests that they hoped would be truly race-neutral, and be sued by disappointed white candidates who believed they had done well on the first tests.
I say "disappointed" because no one was denied a promotion. No one had been specifically identified for promotion. Under the city's "Rule of Three" plan, the fire department was required to choose from among the top three test scorers for each position. But those choices were never made, because the test results were never certified. Those who did well on the tests were eligible, but none was guaranteed a promotion. Indeed the candidates were not told their individual scores, so none of the plaintiffs knew if he/she had passed with high enough scores to be eligible for promotion. So far as I could find, the individual scores were never released. However sympathetic Mr. Ricci's argument that he overcame dyslexia by having friends record the textbooks on tape, he may not have scored high enough to be eligible for promotion, and indeed may not have passed the tests at all.
Correction: Per houndcat's comment near the end of the thread, while not in the public record the individual test scores have indeed been released, and Mr. Ricci did pass the tests. However, Judge Arteron's point remains that the test results were not certified, and no individuals had been interviewed or selected for promotion per the department's "Rule of Three" plan.
Why were the test results so disparate? No one knows. Several theories were offered at the city's Civil Service Board hearings, but none of the theories could be proved. Still, rather than expose the city to claims of racial discrimination, the CSB voted not to certify the tests and to devise a new set of tests that, they hoped, would be truly race-neutral.
Judge Arteron - carefully relying on federal statutes, EEOC regulations, and case precedents - found the city had not violated the law in trying to obey the law. She did what we expect trial court judges to do. She examined the existing law and rendered a decision consistent with that existing law. It was stare decisis in action.
The doctrine of stare decisis.
Stare decisis ("let the decision stand") means simply that courts should follow established precedents to reach their decisions. It is based on the theory that like cases should be treated alike. It's one of the cornerstones of our legal system. Does it mean judges never depart from precedent? No. In the most general sense, Sean Hannity is correct: judges do sometimes decide that an established precedent is wrong and a new precedent is needed. Whether and when judges should do that is one of the most difficult and complex questions in all of legal theory, and for good reason.
On the one hand, we need the law to be predictable. We need to know what a court will deem legal, and what a court will deem illegal, so we can decide how to behave. The idea that legal decisions ought not to be made by whim dates back to the Code of Hammurabi and the earliest examples of written law. You can't obey the law if you don't know what a court will say the law is, and stare decisis helps us know that.
On the other hand, we also need the law to be empirical. Sometimes a legislature or court will devise a rule of law that looks fine on paper, but it doesn't work well in the real world. A judge may decide "XYZ" means "X and Y and Z" because the judge thinks that's the easiest and most rational way to apply the XYZ provision. But what if later cases show people can often do "X and Y" or "X and Z" or "Y and Z," but they can almost never do all three? If you care about the law working for real people, and not simply on paper, it's time to abandon stare decisis and reexamine what "XYZ" means.
Law schools teach entire courses - usually titled Jurisprudence - that essentially focus on whether and when judges should apply or abandon stare decisis. Some of the brightest legal philosophers in history have tried to formulate simple, reliable rules to answer that question, and every one of them has come up short. There is no simple, reliable answer. Ultimately, judges have to make those decisions based on the facts and complexities of a given issue. Most don't do it blithely, because they know doing so upsets the predictability on which law relies.
Correction: As Frank Palmer noted in a comment near the end of the thread, I conflated two concepts here. Strictly speaking, stare decisis refers only to courts' preference for retaining their own or subordinate precedents unless there is compelling reason to overturn them. By contrast, subordinate courts must follow superior court precedents in our legal system. The two concepts are different, but they spring from the same rationale - making the law predictable - and thus I treated them together here.
Legal scholars can debate, and have debated, whether Judge Arteron and/or Judge Sotomayor's panel should have followed or reexamined precedent in the Ricci case. There are good legal arguments on both sides, and indeed the case is a classic example of law that looks good on paper but is difficult to apply in the real world. The Supreme Court may decide to affirm Ricci, or they may decide the current law is too difficult to apply and needs to be rewritten. Neither of those results should be taken as a criticism of Judge Arteron or the Second Circuit.
There was nothing "controversial" in Judge Sotomayor's joining a per curiam decision affirming Judge Arteron, except in the minds of those who were looking for any excuse to criticize President Obama's nominee. Judge Arteron followed the law, and explained her decision in an extraordinarily thorough, well-written opinion. Judge Sotomayor and the other judges on her panel agreed with Judge Arteron's interpretation of the law, and incorporated her exceptional analysis in their opinion. Discrimination law is inherently complex, and it should not be cavalierly rewritten on the facts of a single case.
But Sean Hannity knows better? Hardly.
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Happy Saturday!