Jacobson's argument responds to an article in the Blog of the Legal Times, which analyzes a recent appearance by Justice Ginsburg on CSPAN. During her appearance on CSPAN, Ginsburg noted that the Court had rendered a substantial amount of 5-4 rulings this year and that it would soon issue additional split decisions.
Ginsburg also stated that "one can safely predict [that Ricci], will be among the last [decisions] to come out before the term ends." Ginsburg also praised Sotomayor, stating that "I was cheered by" her nomination and that "I look forward to a new colleague well-equipped to handle the challenges our work presents." Although Supreme Court justices rarely comment on the confirmation process, they have done so in the past. As BLT reports, Justice Stevens and Justice White spoke favorably regarding Judge Bork during his highly controversial and ultimately unsuccessful confirmation bid.
Ginsburg's comments, however, lead Jacobson to worry about the motivation of the justices:
It may be that Ricci will be one of the last decisions issued for entirely legitimate reasons, and Ginsburg merely was stating a fact which shows no motive. But Ginsburg’s endorsement of Sotomayor, combined with Ginsburg’s statements as to the timing of Ricci, creates the unfortunate appearance of one or more of the current Justices playing politics with the timing of the Ricci decision.Although I will concede that Ginsburg's comments could lead to the concerns held by Jacobson, for the following reasons, I believe that his worries are unwarranted. First, the Ricci decision will probably appear among the last cases this term because it, like the Voting Rights Act case, presents challenging legal issues that will deeply divide the Court. Although much of the public discourse surrounding Ricci portrays it as a slam-dunk case wrongly decided by the Second Circuit panel (that included Sotomayor), the law is, in fact, much more complicated than this public discourse acknowledges.
I have suspected that one of the reasons the Obama administration wants to rush the Sotomayor confirmation hearings through in mid-July is to avoid the serious political damage to Sotomayor’s confirmation of a reversal on Ricci. Ginsburg’s statements
seem to support this wisdom, from the Obama administration’s point of view, since the Ricci decision appears to be headed for release after mid-July.
It is not uncommon to find difficult and divisive cases among the final entries by the Court. Grutter v. Bollinger and Gratz v. Bollinger, two closely divided and important affirmative action cases, were decided on June 23, 2003. Last year's 5-4 ruling in the Second Amendment case Heller v. District of Columbia was issued on June 26. And the Court released its 5-4 ruling upholding the Boy Scouts of America's discriminatory policy prohibiting membership by gays and lesbians on June 28, 2000. This is not a scientific study. Instead, I am simply attempting to demonstrate that in my experience, it is not uncommon for the Court to decide divisive and important cases near the end of the June. Accordingly, the fact that Ricci presents complicated legal and factual questions that divide the Court could explain why the Court will decide it near the end of the current term.
Jacobson believes that the Court could delay issuing a ruling in Ricci until late July. But if the Court goes on recess at the end of June, as is customary, then the Ricci decision will probably emerge in the next two weeks -- not in July.
Furthermore, I doubt that the Supreme Court justices have attached as much importance to Ricci as Sotomayor's political opponents. First, because Sotomayor has voted on thousands of cases, isolating one and trying to make it a critical element in an evaluation of her fitness for the bench seems arbitrary and irrational. Also, because the law in this area is close -- as demonstrated by the divided en banc decision -- the effort to use this case in order to defeat Sotomayor's nomination is pretty weak.
Finally, if, as Ginsburg suggests, this case is among a slew of forthcoming 5-4 rulings, then 4 Supreme Court justices, 7 Second Circuit judges (including Sotomayor), and one Federal District Judge will have all voted against Ricci and in favor of the City of New Haven. This breakdown does not support conservative arguments that cite to Ricci (and its potential reversal) in order to portray Sotomayor as a wayward judge who is incompetent and unable to apply the law correctly. Instead, the number of judges who could potentially agree with Sotomayor provides further evidence that her opponents' citation to Ricci (and its possible reversal) is merely a game of politics -- rather than an honest discussion of the legal issues the case presents.
PS: Although I doubt that the Supreme Court is playing confirmation politics, I believe that the Democrats sought a mid-July date for the start of Sotomayor's confirmation hearings because that would allow two weeks for any fallout over Ricci to subside.