Much has been written about the Second Circuit’s decision (by a panel that included now-Associate Justice Sonia Sotomayor) to affirm the district court’s grant of summary judgment to the City of New Haven in Ricci v. DeStefano. Ricci was subsequently reversed by the U.S. Supreme Court and became a major topic of discussion during Justice Sotomayor’s confirmation hearing. Commentators and senators cited Judge Jose Cabranes’ forceful dissent from the Second Circuit’s decision not to grant a rehearing en banc, particularly his comment that the case raised “novel questions of constitutional and statutory law” that the Second Circuit’s decision had “failed to grapple with.”
But perhaps somewhat lost in the extensive analysis of the merits of Ricci is a lurking question best presented by another dissent (by Chief Judge Dennis Jacobs) from the denial of en banc review: Has the Second Circuit’s reluctance to rehear cases en banc gone too far?
Chief Judge Jacobs’ Critique
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