Read more from Slate's coverage of Sonia Sotomayor’s nomination.
The most curious aspect of Judge Sonia Sotomayor's record on the bench is the brief, unsatisfying, and unsigned opinion she joined in Ricci v. DeStefano, the fight between the city of New Haven, Conn., and some of its white firefighters that is this year's major Supreme Court battle over racial discrimination and civil rights law. Sotomayor was one of three judges on the panel that ruled in favor of New Haven, which threw out a test designed to determine 15 firefighter promotions to captain and lieutenant. The city discarded the test and froze the promotions after no African-American candidates, and only two Hispanics, scored high enough to get the captain and lieutenant positions. (The city says it scrapped the test to avoid a potential lawsuit from black and Hispanic firefighters.) The ruling has attracted much scrutiny because it rejected white firefighters' claims of reverse discrimination and also because its scant single paragraph did not grapple with the big constitutional questions the case raises.
Why did the panel fail to explain itself? The more I learn about the 2nd Circuit, the more I wonder whether the differing views of the three judges led to the odd-seeming opinion in Ricci. Another appeal Sotomayor participated in, also about a discrimination claim, illustrates how a meaty case can be relegated to the secondary status of a summary, unsigned opinion. This case, like one about police power I wrote about last week, shows Sotomayor exercising her powers of persuasion with two of her colleagues who are more conservative than she is.
In Miller v. New York, Gregory Miller sued the city of New York, which he worked for, in the Department of Transportation. After he was disabled in an accident on the job, Miller was transferred to a desk job; then later he was transferred back into the field. At that point, Miller says, his supervisor discriminated against him on the basis of sex by calling him not a "real man" or a "manly man" and, to "toughen him up," by coming up with work assignments Miller shouldn't have been asked to do because of his disability. According to Miller, whom the court describes as "a small, non-muscular man," his supervisor made him do heavy lifting and truck work, even though his disability prevented him from doing either. Miller argued that his supervisor's unfair treatment made him reinjure himself and forced him out of his job.
The essence of Miller's sex discrimination claim, based on the federal civil rights law Title VII, is that "he was verbally harassed and made to perform 'active duty' work because he deviated from 'normal gender stereotypes' according to which men are expected to be muscular and macho." A co-worker testified that Miller's supervisor did indeed "assign different tasks to male and female employees, sending the female employees on errands and yelling at the men."
It's clear from the court documents that Miller is gay. This initially hurt him in court. Title VII doesn't cover discrimination on the basis of sexual orientation, which means that mistreating an employee because he is gay generally doesn't violate federal civil rights law (though some states have their own protections for gay workers). The district judge who presided over Miller's case saw it through the lens of his homosexuality and dismissed his complaint.
When the case came up to the U.S. Court of Appeals for the 2nd Circuit in 2006, the three judges on the panel were Sotomayor; Jose Cabranes, a Carter appointee; and Reena Raggi, appointed by George W. Bush. Sotomayor, according to the court observers I talked to, saw the appeal as a clear win for Miller. In her view, a jury could find that Miller had been discriminated against not merely because he was gay but also because, given his physique and frailty, he wasn't the "manly man" his supervisor was looking for.
The other two members of the panel were less sure of the outcome, with Raggi seeming more troubled by Miller's legal theory. Of particular concern was whether a ruling in his favor might go too far in expanding the idea that a Title VII discrimination case can be rooted in sex stereotyping. That theory comes from the well-known Supreme Court ruling in Price Waterhouse v. Hopkins. The case was about a woman who didn't get promoted at the accounting firm after male partners said she was too "macho" and should go to "charm school" and act more feminine. The Supreme Court said that in a discrimination case, "stereotyped remarks can certainly be evidence that gender played a part" when an employee is treated unfairly at work.
Price Waterhouse doesn't explicitly say that men are protected against sex stereotyping by their employers, too. But Title VII says nothing about treating men differently from women in this respect. Nor has the Supreme Court. It's hard to see, really, why men wouldn't deserve the same protections. A 2005 opinion in the 2nd Circuit, by Judge Rosemary Pooler, moved in the direction of treating men the same as women in Title VII cases. Pooler also took a step toward setting aside whether a plaintiff is gay in deciding whether he is being discriminated against because a boss thinks he's unmanly. Pooler's opinion pointed out that when gay men and women bring sex discrimination claims, "stereotypical notions about how men and women should behave will often necessarily blur into ideas about heterosexuality and homosexuality."
In other words, Sotomayor had good law on her side. Her ruling was the opposite of activist, in the sense that she was following previous rulings from her circuit, a point that the White House has made in defending her position in the New Haven firefighters case as well. Sotomayor persuaded Cabranes, a Democratic appointee who has a conservative streak—he is the judge who called out the brief opinion in the New Haven case as insufficient—that Miller deserved his day in court before a jury. And, eventually, she convinced Raggi to join her side as well. That bodes well for her potential to work with conservatives on the Supreme Court, too.
But the panel's unanimity was somewhat shaky. So, to make sure Cabranes and Raggi would stick to her side, Sotomayor agreed to issue an unsigned and unpublished opinion. The term "unpublished opinion" is a bit of a misnomer. These rulings appear in the Lexis and Westlaw databases, where lawyers do legal research. And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status. They're shorter and often still carry less weight—they're persuasive rather than binding precedent, in lawyer's terms. They are not supposed to be the way judges dispose of difficult cases that raise substantive or novel legal issues. But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it's hard to control. And in the 2nd Circuit, I'm told, there's a premium on unanimity and consensus, so a 3-0 unpublished opinion might trump a 2-1 published one, in some cases and in some judges' eyes.
The 2nd Circuit may have more than its share of unpublished opinions in hard cases for the sake of preserving unanimity. This might help explain why Sotomayor and the other two judges who heard the New Haven firefighters' claim resorted to a short opinion stripped of analysis. Perhaps in that case, too, there was a fragile consensus that Sotomayor or another judge was trying to maintain or a difference of opinion about the reasoning behind the holding in New Haven's favor.
At any rate, in Gregory Miller's manly man case, the 2nd Circuit ruling won him a trial. But the jury eventually ruled against him.
This article also appears in Double X.