Conservatism in the Second Circuit: an analysis of the dissenting opinions of Judge Debra Livingston and Judge Reena Raggi.

AuthorTedesco, Michael C.

INTRODUCTION

Since their inception, the courts in the United States have been bestowed vast power, capable of affecting the lives of citizens across the country. (1) "American courts ... do not simply 'announce' the law; as much as any other set of institutions, they make policy." (2) Throughout this country's history, "the [courts have] become actively engaged in, among other things, the regulation of abortion, development of police procedures, ... and even the determination of the 2000 presidential election." (3) Sitting at the center of every conceivable public and private dispute, judges create precedent each and every day that is binding on the judiciary and citizens of future generations. Suffice it to say, members of the judiciary have an immense amount of power. As such, the nature of the judicial position requires judges to leave their political ideologies at the door and view each case through a lens of objectivity and fairness. The practice of adhering to objective reasoning is most important for judges who serve on the bench of a federal appellate court, as these courts provide guidance to lower courts and are often a court of last resort absent a grant of certiorari from the United States Supreme Court. With that in mind, there has been a notion that judges should think independently and base their decisions on what they objectively believe to be the correct result under the law. Despite this maxim, there is an ever-growing body of evidence that suggests a judge's ideology plays an important role in the judge's decision-making. For instance, the media, along with many scholars, have been grouping justices of the United States Supreme Court into "liberal" and "conservative" blocks when analyzing high profile cases in an effort to predict voting patterns and an eventual outcome. (4) Even the method by which some justices employ their clerks is indicative of the pervasiveness of ideological stances in the judicial arena. (5) Despite the flood of research devoted to the link between ideology and Supreme Court jurisprudence, judicial scholarship seems to be devoid of similar studies focused on circuit court judges. Accordingly, this study focuses on two judges currently sitting on the bench of the United States Court of Appeals for the Second Circuit: Judges Debra A. Livingston and Reena Raggi.

The purpose of a high court study is "to discern possible jurisprudential, ideological, sociological, or other patterns and common threads in the court's ... decisions, as well as in the opinions and voting records of the court's individual members." (6) The main purpose of this particular high court study is to create a profile outlining the ideology and voting trends of Judges Debra A. Livingston and Reena Raggi of the United States Court of Appeals for the Second Circuit through an analysis of the judges' decisions over the past five years. (7) This is accomplished through an examination of the nonunanimous opinions in which the judges participated over the past five years, with an exclusive focus on their dissenting opinions. The decision to use exclusively dissenting opinions in this study is because, unlike nonunanimous decisions, unanimous decisions "tell[] nothing of the conflicts around the judicial conference table, the alternative lines of argument developed, [and] the accommodations and the compromises which went into the final result." (8) Thus, a great deal of useful information can be gleaned from reviewing nonunanimous decisions of a court, as judges often convey their reasons for voting in a particular manner and their personal predilections for the matter at issue. Further, nonunanimous opinions "supply information about [judge's] attitudes and their values which is available in no other way." (8) Moreover, the dissent of a judge can be very important for a study like this. Although it holds no precedent and is completely useless as legal authority, (10) a dissent can prove particularly revealing because it is the mechanism by which the dissenter informs the majority that they reached the wrong result and the reasoning as to why; (11) it is the dissenter's only chance to make his or her views public, and perhaps undermine the court's majority in the process. As such, this study focuses exclusively on the dissenting opinions of Judge Livingston and Judge Raggi.

Part I of this study outlines the method by which the judges' ideological conclusions have been derived. Part II provides a background of both judges, highlighting many personal endeavors and explaining how each judge's personal history lead to her current position. Part III offers a set of data gathered for the study and draws some inferences from it in an attempt to shape an initial profile of each judge. Part IV goes beyond the mere numbers to examine a series of decisions in which the judges dissented, highlighting each judge's stance on certain issues and propensity for leaning one way or another in a given situation. Finally, Part V offers some conclusions, insights, and what one may possibly expect if one's case comes before the Second Circuit on appeal.

  1. METHODOLOGY OF THE STUDY

    A judge's ideology is a "latent" trait, and thus incapable of being examined directly. (12) As such, one must find a separate way by which to measure it. The methodology chosen for this study reduces the judges' dissents over the past five years into empirical data outlining each judge's dissent history. The dissents are then broken down into criminal and civil dissents in an attempt to draw ideological conclusions which help to predict how the judges may vote in a particular situation. After the patterns are discerned from the data, a series of cases illustrative of the data are examined. These cases are further explored individually through an examination of the actual dissents, with the goal of determining why the judges voted the way in which they did.

    There are a few points to note about the chosen method of this study. First, this study attempts to predict how the judges will vote in future cases. Therefore, this particular study relies on the assumption that the judges will continue to vote in a manner similar to that used in the past. Second, because the data in this study only consists of data taken from the past five years, any change to the dates used for the study has the possibility of altering the conclusions that can be drawn from a particular data set. Finally, this study in no way is intended to be biased one way or the other, but is merely intended to be a guide for federal court practitioners by offering an objective analysis of the recent dissenting opinions of the judges.

  2. JUDICIAL BACKGROUNDS OF JUDGE LIVINGSTON & JUDGE RAGGI

    1. Background of Judge Debra A. Livingston

      President George W. Bush appointed Judge Livingston to the Second Circuit on May 17, 2007. (13) After graduating Phi Beta Kappa from Princeton University in 1980, Judge Livingston attended Harvard Law School, where she was member of the Harvard Law Review. (14) Upon graduation, Judge Livingston worked at the court to which she would eventually be appointed, the United States Court of Appeals for the Second Circuit, serving as a law clerk to Judge J. Edwards Lumbard. (15) After her clerkship, Judge Livingston served stints in both the public and private sector, working as an Assistant United States Attorney for the Southern District of New York from 1986 to 1991 and as an associate at a prestigious New York law firm from 1985 to 1986 and 1991 to 1992. (16) Thereafter, Judge Livingston entered the field of legal academia, joining the faculty of the University of Michigan Law School from 1992 until 1994. (17) At Michigan, she taught evidence, criminal procedure, and a seminar on ethical issues in criminal law. (18) After teaching at Michigan, Judge Livingston joined Columbia Law School faculty in 1994. (19) Judge Livingston continues to teach at Columbia Law School, and she has co-authored a casebook on criminal procedure and has published numerous articles on various legal topics. (20)

    2. Background of Judge Reena Raggi

      Judge Raggi's background is markedly similar to that of her colleague, Judge Livingston. Another George W. Bush appointee, Judge Raggi was appointed to the Second Circuit on October 2, 2002. (21) Judge Raggi began her legal career as a law clerk for Chief Judge Thomas E. Fairchild of the United States Court of Appeals for the Seventh Circuit. (22) Thereafter, she too worked as an associate at a prestigious New York law firm. (23) After working in private practice for two years, Judge Raggi spent seven years as an Assistant United States Attorney for the Eastern District of New York where she served as the head of the office's narcotics and special prosecutions unit. (24) In 1986, she was named the Eastern District's United States Attorney. (25) Before her appointment to the Second Circuit, Judge Raggi returned to private practice as a partner at another New York law firm. (26) Since her appointment to the court, she has served on many committees and has received many accolades. (27)

  3. THE "RAW DATA": AN EMPIRICAL OVERVIEW OF JUDGES LIVINGSTON AND RAGGI'S DISSENTING OPINIONS OVER A FIVE-YEAR SPAN

    Between August 1, 2006 and October 1, 2011, the United States Court of Appeals for the Second Circuit issued a total of 11,940 decisions. (28) Of those 11,940 cases, Judge Livingston participated in fifty-nine. (29) From those fifty-nine cases, Judge Livingston dissented a total of eleven times. (30) Judge Raggi has very similar numbers with respect to her decision-making while serving on the Second Circuit. Judge Raggi participated in eighty-three decisions over the past five years on the bench, (31) and in seven of those cases she issued a dissenting opinion. (32) Based on these numbers, Judge Livingston dissents in roughly 18.6% of the cases in which she participates. Judge Raggi's dissenting frequency, on the other hand, is even smaller, at...

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