Sotomayor's Manly Man RulingHer bold ruling in favor of a man who claimed sex discrimination.

Read more from Slate's coverage of Sonia Sotomayor’s nomination.

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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 2^nd 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 So, to make sure Cabranes and Raggi would stick to her side, Sotomayor agreed to issue an unsigned and unpublished opinion. The term "unpublished opinion" is a bit of a misnomer.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 And since a change in the rules in 2007, lawyers have been able to cite unpublished opinions in other cases. But unpublished opinions have second-class status.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 But sometimes those cases sneak in, because once a culture of unpublished opinions takes hold in a particular circuit, it's hard to control.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 2^nd 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 2^nd 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 2^nd Circuit ruling won him a trial. But the jury eventually ruled against him.

This article also appears in Double X.

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Emily Bazelon is a Slate senior editor and an editor of DoubleX.

Photograph of Sonia Sotomayor by Win McNamee/Getty Images.

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