MUSINGS ON STARE DECISIS IN NEW YORK'S COURT OF LAST RESORT.

• Author: Read, Susan Phillips
• Position: 2018 Hugh R. Jones Lecture

My thanks to The Fund for Modern Courts and The Albany Law School for inviting me to deliver the 2018 Hugh R. Jones Memorial Lecture and for hosting this event. My acquaintance with Judge Jones derives from his writings and Chief Judge Judith Kaye's storytelling. Both portray a consummate judicial craftsman, blessed with a knack for the memorable turn of phrase--a powerful talent for a judge to possess--and dedicated to the best interests of the Court of Appeals and the clarity and stability of New York law.

Many judges have reflected on the craft and philosophy of appellate judging, but none more eloquently and astutely than Judge Jones in the Benjamin N. Cardozo Lecture that he delivered at the New York City Bar in 1979, entitled Cogitations on Appellate Decision-Making. (1) This lecture, required reading for new Judges of the New York Court of Appeals, predates the major statutory revision of the Court's jurisdiction in 1986, which created a predominantly certiorari court. (2) As a result, part of Cogitations is now outdated. Judge Jones's key messages still ring true, though; in particular, his discussion of practical and substantive considerations bearing on when to dissent, or, more precisely, how the best interests of the Court and the law often cut against the individual judge's personal interest or ego in dissenting. (3)

And although their time on the bench overlapped for less than a year and a half, Judge Kaye often talked about Judge Jones, always with evident admiration and affection. (4) My favorite of Judge Kaye's stories brings home Judge Jones's facility as a writer and his devotion above all to the Court of Appeals and its mission. Judge Kaye recounted leaving on Friday at the end of a session early on in her tenure with at least five assigned majority writings, only to be greeted the following Monday or Tuesday with an exquisitely written dissent from Judge Jones directed at one of her far-from-complete, yet-todoe circulated draft opinions for the Court. Judge Jones's dissent, Judge Kaye soon realized, was intended to sharpen her analysis with an eye toward improving the quality of her majority opinion. He later withdrew the dissent; its salutary purpose having been accomplished. And this was not a one-off event in aid of a rookie judge. In Cogitations, Judge Jones extols the practice of preparing internal dissents to strengthen the majority opinion, the work product of the Court as an institution. (5) Having begun with this brief appreciation of Judge Jones's judicial personality, I now turn my attention to stare decisis.

[T]he questions of a judge's relationship to the past in the form of prior decisions, to the present in the form of the case at hand, and to the future in the form of the effect that [an] opinion will have as precedent are almost daily grist for the judge of a reviewing court. (6) Why and whether stare decisis constrains decision making in a court of last resort is an intriguing and epic topic and the subject of this lecture, which focuses on the treatment of precedent at the New York Court of Appeals. (7) And I use the word "constrain" deliberately. After all, stare decisis is superfluous if a judge in the present agrees that a prior decision--the precedent--was rightly decided. Put another way:

[I]f the fact that a court considers one of its previous decisions to be incorrect is a sufficient ground for overruling it, then stare decisis is out the window, because no doctrine of deference to precedent is needed to induce a court to follow the precedents that it agrees with; a court has no incentive to overrule them even if it is completely free to do so. (8) Instead:

[S]tare decisis 'imparts authority to a decision... merely by virtue of the authority of the rendering court and independently of the quality of its reasoning. The essence of stare decisis is that the mere existence of certain decisions becomes a reason for adhering to their holdings in subsequent cases.' (9) But why should courts follow prior rulings they consider to be wrong or undesirable? Certainly, the proposition is counterintuitive. Yet, stare decisis endures as a bedrock feature of Anglo-American jurisprudence. (10) Indeed, one of the first skills fledgling lawyers are taught in law school is how to winkle out the "holding" of a case and whether the "holding" or precedent has been followed, properly distinguished or justifiably overruled in subsequent cases. (11) And nominees to the United States Supreme Court are routinely quizzed during Senate confirmation hearings about the degree of respect they will pay to precedent if confirmed. (12) Of course, one might be forgiven for suspecting that the Senators' curiosity about a nominee's views on precedent is motivated by the Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, (13) which reaffirmed the "essential holding" (14) of Roe v. Wade (15) on the basis of stare decisis. (16)

Still, there is no doubt that stare decisis is a core structural attribute of our state common law and federal legal systems, and the question remains why this is or should be so. Several overlapping justifications for stare decisis have at one time or another been put forward with varying degrees of emphasis by courts and scholars. (17) They are equality and fairness, stability, predictability and reliance, which are interrelated values in this context; judicial efficiency or practical necessity; judicial humility; and public faith in the judiciary and the rule of law. (18)

Stare decisis tends to ensure that like cases are decided alike, a principle of equality and fairness that guards against arbitrary or discriminatory decisions. As Second Circuit Judge Pierre Leval explained in his Madison Lecture, Judging Under the Constitution: Dicta About Dicta:

[I]t [is] not the purpose of stare decisis to increase court power. To the contrary, the rule [is] intended as a limitation on the courts. It [is] designed to keep courts principled and consistent--to prevent courts from acting arbitrarily or capriciously, deciding the same facts one way in Jones's case and another way in Smith's case. The idea behind it [is] that courts would better perform their assigned function of deciding cases if compelled to decide them consistently. (19) Relatedly, the consistency fostered by stare decisis creates stability and encourages reliance. People develop expectations based on the reasoning and results of past cases. If Smith knows how Jones's case turned out and the reasons for the result, he is empowered to plan and align his affairs in conformity with governing law; he is well-positioned to predict the legal consequences of his future conduct. In sum, stare decisis provides valuable guidance to bench and bar and to the public; adherence to precedent insures that a court's adjudications are not brought "into the same class as a restricted railroad ticket, good for this day and train only." (20)

The most complete expression of the Court of Appeals's historical practice of stare decisis is generally considered to reside in two major writings: then Judge and later Chief Judge Charles Breitel's majority opinion in People v. Hobson (21) and Judge Richard Simons's concurrence in People v. Damiano. (22) On the importance of stability and predictability, Judge Simons observed in Damiano that:

[F]ollowing precedent enhances stability in the law because the failure of a court to settle on a rule invites perpetual attack and reexamination, with the real possibility that governing rules will change whenever the composition of the Court changes. It is rare that all members of the Court fully agree on a particular subject and it is more important that there be a predictable rule to govern conduct than that the rule be "right." (23) Any other course can lead to anarchy as trial courts and intermediate appellate courts, who must apply the law as [the Court of Appeals] declare[s] it, speculate on what [the Court's] latest view on the subject will be. For this reason alone, Judges have an institutional obligation to respect the doctrine and abide by it. Moreover, the reiteration of arguments against the rule after they have been considered and rejected several times permits an unwarranted inference by the Bar and public that those rules remain open to debate. (24) Judicial efficiency and practical necessity also justify stare decisis. In Judge Simons's words in Damiano, "it cannot be seriously argued that a court should reexamine every relevant precedent that has gone before. It could hardly do its work if it did so." (25) This thought was expressed metaphorically by United States Supreme Court Justice (earlier Chief Judge) Benjamin Cardozo, when he cautioned that "the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him." (26)

Next, judicial humility counsels respect for precedent. Chief Judge Breitel in Hobson conceded the "humbling assumption, often true, that no particular court as it is then constituted possesses a wisdom surpassing that of its predecessors. Without this assumption there is jurisprudential anarchy." (27) Simply put, prudent appellate judges temper their certainty with modesty, especially when contemplating a rent in the fabric of the law.

The Court of Appeals's jurisdiction is generally restricted to finally decided questions of law that have been preserved in the trial court. (28) By contrast, the Appellate Division may in its discretion exercise "interestf] of justice" jurisdiction to reach and decide any issue of law, whether or not it was argued in the lower court. (29) But if the Appellate Division does this, I should add, the Court of Appeals has no power to review either the Appellate Division's exercise of its discretion or the legal issue that it...