Justice Sotomayor and Per Curiam Orders

In Ricci vs. DeStefano, more than a dozen white firefighters, as well as one Hispanic, sued New Haven, Conn., for discrimination after the city threw out the results of its lieutenant and captain exams because black firefighters performed disproportionately poorly and wouldn't have been promoted. A federal district court judge found in 2006 that the city was justified. The firefighters appealed, and the case was assigned to a three-judge panel of the 2nd Circuit Court of Appeals that included Sotomayor. In February 2008, the panel issued a summary order, without comment, upholding the lower court's finding. Another 2nd Circuit judge asked the full appeals court to rehear the case, but the court's other judges declined. After that, Sotomayor and the other two judges on the panel issued a new "per curiam" order that adopted the lower court's ruling as their own, calling it "thorough, thoughtful, and well-reasoned."

The issue of the per curiam order came up during the Senate confirmation hearings.

In a July 1, 2009, column in Human Events headlined "So much for wise Latinas," conservative columnist Coulter wrote that "Sotomayor threw out their lawsuit in a sneaky, unsigned opinion — the judicial equivalent of 'talk to the hand.'" Coulter's criticism was unfair.

Practicing lawyers understand that "unsigned" means the ruling was "per curiam," or "for the court" — simply, that everyone on the panel agreed with the decision and decided to issue a single opinion. The panel that heard the case stands behind its decision. Coulter's attempt to distort the truth by accusing Sotomayor of hiding behind a "bad decision" is disingenuous. There was nothing sneaky or underhanded about the decision made in this case, even if you do not agree with it. Moreover, federal judges cannot be removed for making unpopular decisions so what motivation would Sotomayor, or any other federal judge have to "hide behing a per curiam order?" The court's file, a public record, will reveal which judges heard the case even if they are not identified in the per curiam opinion.

Perhaps this discussion raises the question of whether judges should be required to at least sign or be identified as the author of an opinion. If a per curiam opinion represents the opinion shared by the three-judge panel that heard the case, why should they not be identified or sign off on the opinion?