Bush v. Gore Was a Per Curiam Opinion, Too

Reporters and commentators having been making much of the fact that in the case of Ricci v. DeStefano — which upheld New Haven’s right to discard the results of two promotional exams for firefighters, to avoid promoting only white firefighters  — Judge Sonia Sotomayor joined two other Second Circuit Court of Appeals judges in issuing a summary Per Curiam opinion.  The suggestion, by The New York Times’ Adam Liptak, The New Republic’s Jeffrey Rosen, the Judicial Confirmation Network and others is that issuing a per curiam (unsigned) opinion was a cop-out on the part of Sotomayor and her colleagues, given the controversial nature of the reverse discrimination and affirmative action issues involved. Much of their analysis rests on the comments of Second Circuit Judge Jose Cabranes, who voted to re-hear the case but was defeated by his colleagues.

But are per curiam opinions really only reserved for “perfunctory” rulings in uncontroversial cases, as the critics imply?

Like Bush v. Gore, the per curiam Supreme Court opinion which decided the presidency in 2000?

Or Brandenburg v. Ohio, the landmark (and per curiam) Supreme Court case that redefined First Amendment rights in 1969?

Sure, the published decision in Ricci was short, because the judges explicitly adopted “the reasons stated in the thorough, thoughtful, and well-reasoned opinion of the court below.” And the panel summed up its view when it wrote that “the Civil Service Board . . . was simply trying to fulfill its obligations under Title VII when confronted with test results that had a disproportionate racial impact.”

What more is there to say? Reasonable people might disagree with the outcome — although notably, a majority of the Second Circuit did not — but to chastise Sotomayor because the opinion was issued per curiam seems way off the mark.