Chief Judge Jonathan Lippman: a new era.

• Author: Laroche, Matthew J.

1. INTRODUCTION

   As the recently appointed chief judge of the New York State Court of Appeals, Jonathan Lippman inherits a position previously held by many of the best and brightest legal minds in our country's, let alone state's, history. (1) Although all of the judges of the Court, both past and present, share in the Court's successes, the influence and impact of many of the Court's chief judges is indisputable. Indeed, from Benjamin Cardozo, Cuthbert Pound, and Irving Lehman to Lawrence Cooke, Charles Breitel, and, most recently, Judith Kaye, the Court, through its chiefs, has exerted enormous influence in almost every field of American law, not only developing the common law, but contributing to the scholarship on state-protected rights and liberties. (2)

   For instance, it was Chief Judge Cardozo who delivered the unanimous ruling in Schloendorff v. Society of New York Hospital (3) that has since served as the common law foundation for the constitutional right to refuse medication and other similar liberties. (4) It was Chief Judge Lehman who wrote in People v. Barber (5) that religious proselytizing must be exempt from a local license requirement for peddlers in order for the requirement to survive under the New York State Constitution--an opinion which was later cited and adopted by the United States Supreme Court in Murdock v. Pennsylvania. (6) And it was Chief Judge Breitel whose opinion in People v. Hobson (7) reversed the conviction of a defendant who, in the absence of counsel, was submitted to custodial questioning after waiving his right to counsel, and thereby reaffirmed the Court's commitment to, when appropriate, "extend[ing] constitutional protections ... beyond those afforded by the Federal Constitution." (8) These are a few of the countless examples of leading decisions by chief judges of the Court that have gained traction and become impactful throughout the country--no doubt a storied tradition that could, and should, be covered by its own law review article. (9)

   Hence, on February 11, 2009, when Jonathan Lippman was confirmed by the New York State Senate as chief judge (10)--a position that has been held by the likes of Cardozo, Cooke, and Kaye--he had big shoes to fill. And not only were there high expectations, but there was a swirl of controversy surrounding the appointment process, (11) as well as an impending budget crisis in New York State. (12) Chief Judge Lippman certainly must have anticipated a demanding and difficult start as chief. But even with the recognition of the challenges ahead, few knew exactly what to expect from him.

   This is not to suggest that Chief Judge Lippman is new to the court system or otherwise a relative unknown in New York State. Quite to the contrary, Chief Judge Lippman has worked in various capacities in New York State courts for over four decades. (13) Almost immediately following his graduation from law school, he began methodically rising through the hierarchy of the state court system, holding positions as court attorney, clerk, justice, judge, and now chief judge (14)--an impressive and workmanlike career by any standard.

   Most are familiar with Chief Judge Lippman's accomplishments as chief administrative judge. Appointed by Chief Judge Kaye in 1996, Lippman earned victories developing specialty courts and implementing jury reform, among many others. (15) He has also fought relentlessly for pay raises for judges in New York State--a goal he continues to pursue as chief judge. (16) And his administrative prowess is well-documented by his peers who consider him "a skilled consensus builder with an innate ability to relate to legislators and the executive as well as judges and lawyers," (17) and have said that "[h]e knows the court system and administrative structure as well as anyone in the state." (18) These skills will serve Chief Judge Lippman well when executing his duties as chief judge, where he must not only oversee the seven judge court but manage the entire Unified Court System, which includes a $2.5 billion budget and over sixteen thousand employees. (19)

   But for all of his experience and success as an administrator of the courts, many have noted that he has little experience actually deciding cases. (20) Although Chief Judge Lippman has served as a judge of the court of claims, a justice of the Supreme Court for the Ninth Judicial District, an associate justice of the Appellate Term, Ninth and Tenth Judicial Districts, and as the presiding justice of the Appellate Division, First Department, his scant judicial record before joining the Court of Appeals has many wondering whether he has the necessary experience to deal with the difficult and consequential issues that high courts inevitably decide. (21)

   In an attempt to profile Chief Judge Lippman as a jurist and leader of the Court, this article reviews each of the fifty-five cases in which he has taken part, spanning from when he joined the Court until November 25, 2009. Specifically, this article looks at nonunanimous decisions to explore Chief Judge Lippman's decisionmaking by identifying trends in his criminal and civil opinions. In addition, this article explores many of the changes to the administration of the Court over the past year. There are, however, obvious limitations in profiling Chief Judge Lippman using less than a full year's worth of opinions. (22) Future studies will certainly fill in the gaps that remain open from this piece. And of course, even with the best intentions, "[t]rying to probe the influence of judicial personality on judicial decisions is no easy task." (23)

   Emerging from this comment are several themes. As the leader of the Court, Chief Judge Lippman has demonstrated, both as an administrator and jurist, that he is unafraid, and indeed, unapologetic when addressing a controversial issue or case. Hence, the chief judge authored two of this year's most high-profile and controversial decisions (24) and continues to challenge the executive branch to better compensate the judiciary. (25) His record thus far suggests that he is a new, dynamic leader for the Court, less concerned with unanimity among the judges and more interested in getting results. Thus, dissenting opinions have risen significantly since his appointment and many of the members of the Court have not hesitated to harshly criticize opinions authored or joined by Chief Judge Lippman. (26) Some commentators have described the Court's opinions as much more divisive than in recent history. (27) Chief Judge Lippman has also had a notable influence on the Court's treatment of criminal issues, both inside and outside the courtroom. Not only has he established a permanent New York State Justice Task Force on wrongful convictions, (28) but during his tenure the number of criminal leave applications granted by the Court has risen significantly. (29)

   In regard to his judicial philosophy and decision-making, Chief Judge Lippman's record suggests that he is a progressive jurist. Hence, in close decisions, he has often supported workers' rights, individual rights and liberties, and the rights of the accused, when appropriate. Moreover, based on the analysis of his cases, he has not aligned with any particular judge of the Court besides Judge Ciparick and, to some extent, Judge Jones. Thus, his record may suggest to some that he is a "liberal" judge. (30) Nevertheless, whatever his record, style, or philosophy, Chief Judge Lippman's tenure will be, and is, a new era for the Court of Appeals.

2. BACKGROUND: A METHOD OF ANALYSIS

   There are few resources discussing the judicial philosophy and decision-making of Jonathan Lippman. This is, of course, unsurprising since he was only recently appointed as the chief judge and has spent most of his legal career in court administration. In addition, Chief Judge Lippman had only a brief tenure as a justice of the supreme court, appellate term, and appellate division, leaving only a handful of cases from which to assess his decision-making. Few, if any, have been able to systematically explore Chief Judge Lippman's judicial record in an attempt to assess his tendencies as a judge. Thus, those that have attempted to describe Chief Judge Lippman the jurist have done so broadly by using terms such as "moderately liberal" or "shrewd and pragmatic." (31)

   After close to a year on the Court, however, Chief Judge Lippman has taken part in fifty-five cases and counting. And he had a busy first year authoring opinions for the Court. In fact, of the cases he took part in, he authored more opinions than any other judge. (32) For all cases, both unanimous and non-unanimous, Chief Judge Lippman authored sixteen opinions, thirteen opinions of the Court, (33) one concurrence, (34) and two dissents. (35) For non-unanimous decisions, Chief Judge Lippman authored six opinions, four opinions of the Court, (36) and the two dissents.

   In an attempt to sketch a profile of Chief Judge Lippman from these cases, this article focuses on the twenty-five decisions that were non-unanimous. (37) Many of these opinions constitute the most high-profile cases the Court decided last year. In fact, during 2009 alone, the Court ruled on hot-button issues including same-sex marriage, (38) warrantless and suspicionless GPS tracking of criminal defendants, (39) creditors' suits, (40) and the power of the executive branch to appoint the lieutenant governor, (41) among many others. From a cursory review, one will note that Chief Judge Lippman has authored opinions in many, in fact most, of these cases.

   This article focuses on non-unanimous opinions for two reasons. First, a unanimous decision offers little insight into the deliberations involved in the case. (42) Lost in a unanimous decision are the internal discussions, conflicts, and compromises that ultimately lead to the final opinion of the court. (43) Thus, as Herman Pritchett observed in his innovative study of the Roosevelt Court in 1948, the...