For all the publicity about the Supreme Court’s 5-4 reversal of Judge Sonia Sotomayor’s decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.

That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

The reason is that by electing on Feb. 15, 2008, to dispose of the case by a cursory, unsigned summary order, Judges Sotomayor, Rosemary Pooler and Robert Sack avoided circulating the decision in a way likely to bring it to the attention of other 2nd Circuit judges, including the six who later voted to rehear the case.

And if the Ricci case — which ended up producing one of the Supreme Court’s most important race decisions in many years — had not come to the attention of those six judges, it would have been an unlikely candidate for Supreme Court review. The justices almost never review summary orders, which represent the unanimous judgment of three appellate judges that the case in question presents no important issues.

The 2nd Circuit and other appeals courts hear cases in three-judge panels, which almost always write full opinions in all significant cases. Those opinions, which are binding precedents, are routinely circulated to all other judges on the circuit, in part so that they can decide whether to request what is called a rehearing en banc by the entire appeals court.

Not so summary orders. They do not become binding precedents, and in the 2nd Circuit they are not routinely circulated to the judges except in regular e-mails containing only case names and docket numbers. Those e-mails routinely go unread, on the assumption that all significant cases are disposed of by full opinions, according to people familiar with 2nd Circuit practice.

In any event, any 2nd Circuit judge who had chanced to find and read the panel’s summary order in Ricci would have found only the vaguest indication what the case was about.

But the case came to the attention of one judge, Jose Cabranes, anyway, through a report in the New Haven Register. It quoted a complaint by Karen Lee Torre, the firefighters’ lawyer, that she had expected "’a reasoned legal opinion,’ instead of an unpublished summary order, ‘on what I saw as the most significant race case to come before the Circuit Court in 20 years.’"

According to 2nd Circuit sources, Cabranes, who lives in New Haven, saw the article and looked up the briefs and the earlier ruling against the firefighters by federal district judge Janet Arterton. He decided that this was a very important case indeed, and made a rare request for the full 2nd Circuit to hold an en banc rehearing.

(In response to an e-mail from me, Cabranes declined to comment.)

Cabranes, like Sotomayor a Clinton appointee of Puerto Rican heritage — and once a mentor to her — was outvoted by 7-6, with the more liberal judges (including Sotomayor) in the majority. But by publishing a blistering June 12, 2008, dissent Cabranes brought the case forcefully to the attention of the Supreme Court.

By that time, Torre had filed a petition for certiorari with the court, a fairly unusual move in a case involving impecunious clients because of the long odds against success. Those odds seemed especially long in this case. Not only had the panel branded it as insignificant, but the justices usually review cases to resolve conflicts among precedents set by different appeals courts — and a summary order sets no precedent.

Enter Judge Cabranes. In his dissent, he accused the Sotomayor panel of having "failed to grapple with the questions of exceptional importance raised in this appeal," and he urged the Supreme Court to do so. He stressed that despite the unusually long and detailed briefs, arguments and factual record, the panel’s "perfunctory disposition" oddly contained "no reference whatsoever to the constitutional claims at the core of this case." Cabranes also suggested that the case might involve "an unconstitutional racial quota or set-aside."

Some of the seven judges who voted to deny rehearing, including Sotomayor, responded that (among other things) the panel’s decision had been dictated by past 2nd Circuit precedents. Cabranes disputed this.

There has been much speculation about what Adam Liptak of the New York Times described on May 26 as the Sotomayor panel’s "remarkably cursory" and "baffling" treatment of the case, which Liptak said "bristles with interesting and important legal questions about how the government may take account of race in employment."

Liptak later reported that "according to court personnel familiar with some of the internal discussions of the case, the three judges had difficulty finding consensus, with Judge Sack the most reluctant to join a decision affirming the district court. Judge Pooler, as the presiding judge, took the leading role in fashioning the compromise. The use of a summary order, which ordinarily cannot be cited as precedent, was part of that compromise."

But if that’s what happened, it might be difficult to square the panel’s action with the 2nd Circuit’s Local Rule 32.1(a). That rule provides that panels may rule "by summary order instead of by opinion" only "in those cases in which decision is unanimous and each judge of the panel believes that no jurisprudential purpose would be served by an opinion (i.e., a ruling having precedential effect)."

In response to e-mails from me asking each of the three panel members why they had proceeded by summary order, Chief Judge Dennis Jacobs of the 2nd Circuit called and explained that the judges don’t comment on case deliberations except in their published opinions.

Whether that will be Judge Sotomayor’s answer when she is asked about the Ricci summary order in next week’s Senate Judiciary Committee hearing remains to be seen.

CORRECTION: The initial version of this post erred in stating that the cost of printing the required number of copies of a petition for certiorari is typically "$20,000-plus." In fact, the cost is typically $1,000-$2,000, although it was much more in the firefighters’ case because they included voluminous materials from the record in the appendix to their petition.