In covering Ricci, media should not promote “extraordinary rebuke” myth

In covering the Ricci case, reversing Judge Sonia Sotomayor's decision, media should not promote the myth that the reversal represents a “historic rebuke” or that Sotomayor's Supreme Court reversal rate is “high.”

As Media Matters for America has noted, in a May 27 editorial, The Washington Times stated that if the Supreme Court were to reverse Supreme Court nominee Judge Sonia Sotomayor's decision in Ricci v. DeStefano, “It would be an extraordinary rebuke were a current nominee to be overruled on such a controversial case by the very justices she is slated to join.” Now, in covering the Supreme Court's decision in Ricci, reversing by a 5-4 margin a decision by the 2nd U.S. Circuit Court of Appeals -- joined by Sotomayor -- the media should not join the Times in promoting the myth that the reversal represents a “historic rebuke” or that Sotomayor's Supreme Court reversal rate is "high." Indeed, as a judge on the U.S. 3rd Circuit Court of Appeals, current Justice Samuel Alito was reversed on at least four occasions before his confirmation to the Supreme Court and received a “rebuke” as an appeals court judge by Justice Sandra Day O'Connor, whom he replaced.

In his book, The Nine: Inside the Secret World of the Supreme Court (Doubleday, 2007), New Yorker staff writer and CNN senior legal analyst Jeffrey Toobin wrote that, in 1992, O'Connor had “excoriated” the “logic, approach, and conclusions” of her eventual successor, Alito, in her opinion for the abortion-rights case, Planned Parenthood v. Casey. Moreover, Alito identified four more reversals -- in each of which O'Connor voted with the majority reversing Alito -- in his Supreme Court nomination questionnaire:

  • Rompilla v. Horn, 355 F.3d 233 (3d Cir. 2004), cert. granted 542 U.S. 966, and rev'd 125 S.Ct. 2456 (2005)
  • Thomas v. Comm'r of Soc. Sec., 294 F.3d 568 (3d Cir. 2002), cert. granted 537 U.S. 1187, and rev'd 540 U.S. 20 (2003)
  • Coss v. Lackawanna County D.A., 204 F.3d 453 (3d Cir. 2000) (en banc), cert. granted 531 U.S. 923 (2000), and rev'd 532 U.S. 394 (2001)
  • Fiore v. White, 149 F.3d 221 (3d Cir. 1998), cert. granted 526 U.S. 1038, question certified 528 U.S. 23 (1999), certified question answered 562 Pa. 634 (2000), and rev'd 531 U.S. 225 (2001)

Alito was reversed unanimously in Thomas.

Furthermore, it also would not be unprecedented for the court to reverse a ruling reached by a justice before his or her elevation to the Supreme Court. As an appeals court judge, Chief Justice John Roberts was a member of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, which, in its July 2005 unanimous ruling in Hamdan v. Rumsfeld, allowed a military commission to try Salim Ahmed Hamdan, a Guantánamo Bay detainee.

Roberts was confirmed as chief justice several months later, in September 2005. Then, in 2006, the Supreme Court reversed the circuit court's decision on a 5-3 ruling.

Moreover, contrary to the myth that it is unusual for the Supreme Court to reverse federal appellate court decisions, data compiled by SCOTUSblog since 2004 show that the Supreme Court has reversed more than 67 percent of the federal appeals court cases it considered each year, except 2007, when it reversed federal appeals court cases 61 percent of the time.