I’ve only looked at the lower court opinions, not the certiorari petitions.

Both responses are in and the cases should be decided at the first fall conference.

(Information deemed reliable, but not guaranteed.)

Some of the justices probably did so based on emotion rather than reason, in reaction to a serious faux pas in the respondent’s brief.

The respondent’s brief irritatingly referred to the plaintiff as a four-time married white woman, probably angering some of those who reviewed the cert. petition.

The Supreme Court used the case as a vehicle to reject the requirement that a plaintiff show psychological injury in sexual harassment cases, but it was an odd vehicle for such a holding, since it was unclear whether the lower court’s decision to reject the plaintiff’s claim actually turned on any such requirement.

Some of the justices probably perceived the respondent’s brief’s reference to the plaintiff’s failed marriages as suggesting that she asked to be harassed, and the reference to her race as suggesting that she could not truly have suffered much discrimination, since she was not black.

The Sixth Circuit’s decision under review, by contrast, did not contain any insensitive remarks or anything else unusual.

I don’t have an exhaustive list or anything close to it, but it does happen from time to time. Two examples that quickly come to mind are the Court’s holding just last term that the Bankruptcy Clause is a limit on state sovereign immunity–Central Virginia Community College v. Katz, 126 S.Ct. 990 (2006). The court of appeals decision reviewed in that case was an unpublished summary order from the Sixth Circuit, reported at 106 F. App’x 341 (6th Cir. 2004). A second example is Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598 (2001). The lower court decision in that case was an unreported one from the Fourth Circuit, available at 2000 WL 42250 (4th Cir. 2000).

Perhaps others can weigh in with additional examples.