Toward the Lippman Court: flux and transition at New York's Court of Appeals.

AuthorBonventre, Vincent Martin
PositionNEW YORK'S COURT OF APPEALS
  1. INTRODUCTION: THE SIGNIFICANCE OF CHIEFS

    New York has a new chief judge. It seems to have a new Court of Appeals as well. That Court is confident, contentious, and controversial.

    The retirement of Judith Kaye, and her replacement with Jonathan Lippman, might only be a change of one in the composition of the state's highest court. But that change in composition has been reflected in a significant change in the Court's dynamics and jurisprudence. It is a change that goes well beyond what might be expected when the appointee of one liberal democratic governor is simply replaced by the appointee of another. (1)

    Courts often do reflect the personality, priorities, and ideological persuasion of the judge or justice who occupies the center seat. Indeed, courts are typically referred to by the name of their chief judge or justice at a given time. This is true when we speak of the United States Supreme Court at relevant times as, for example, the "Warren Court," the "Burger Court," or the "Rehnquist Court." (2) Such usage is no less appropriate when referring to the Court of Appeals as, for example, the "Cardozo Court"--that is one that can never be excluded when speaking of New York's historically prominent tribunal--or more recently, the "Cooke Court," the "Wachtler Court," or the "Kaye Court."

    Moreover, these appellations are not merely conveniences. They are not simply easy shorthands for referring to a court at a specific period. They also recognize the reality that the individual who is chief judge or justice makes a difference, leaves an imprint, helps to define the era that is bounded by his or her tenure, and that a court's dynamics and direction usually do change--with some chiefs, of course, more than others.

    By way of illustration, the tenures of the last three chief justices of the Supreme Court have surely been distinct. With Earl Warren at the helm, the "Warren Court" actively expanded the protections of civil rights, civil liberties, and the rights of the accused. (3) Under Chief Justice Warren Burger, the "Burger Court" was a transitional institution, retrenching from rulings of the preceding era, while rendering some rights-protecting landmarks of its own. (4) With William Rehnquist in the center seat, the "Rehnquist Court" vigorously accelerated the undoing of the "Warren Court" decisions, drastically diluting or reversing disfavored liberal (5) precedents, while establishing its own conservative ones. (6)

    Earl Warren was chief justice for fifteen years; Warren Burger for seventeen; William Rehnquist for nineteen. They each had plenty of time to make their marks upon the Court. The chief judges of New York typically have much less time. While appointments to the nation's highest Court are for life, (7) New York law mandates the retirement of judges on its highest court at the age of seventy. (8) Nevertheless, the state's chief judges have placed their individual imprints on the Court of Appeals during their respective tenures. Jonathan Lippman's immediate predecessors are no exception.

    Under Lawrence Cooke, chief judge for six years, the "Cooke Court" became institutionally what he was individually throughout his total of ten years on New York's highest bench--a national leader in the state constitutional protection of rights and liberties that were being curtailed as a matter of federal constitutional law by an increasingly conservative Supreme Court. (9) With Sol Wachtler at the helm for eight years, the "Wachtler Court" viewed the state's constitution as a supplemental source of rights to which it resorted following reversals by the Supreme Court and, in its later years, became deeply divided as the chief judge and his Court moved into a more conservative direction. (10)

    With Judith Kaye as primus inter pares for sixteen years--a Court of Appeals record and an exception to the typically much shorter tenures--the "Kaye Court" initially returned to the more progressive direction of the Cooke and early-Wachtler Courts. (11) But following harsh public criticism initiated by Governor George Pataki for being too liberal and, then, staffed with several appointees of that governor, the Court became increasingly cautious and conservative. (12)

    That is a thumbnail--i.e., over simplified--sketch of the Court over three decades and three chief judges. What follows is a closer review of the Court in the years immediately preceding Jonathan Lippman's appointment in 2009. We will then take a look at a number of developments that have already distinguished the Lippman Court from its predecessor, and this will include a survey of some illustrative significant decisions.

  2. FLUX IN THE KAYE ERA

    At the outset, the Kaye Court behaved as one might expect. By the time she was elevated from associate to chief judge in early 1993, Judith Kaye had already established herself, both on the Court and off, as an eminent judicial scholar and a national leader in advocating independent state constitutional decision making. (13) Immediately, her Court began to distinguish itself from its recent past under her predecessor and among state supreme courts across the country. In brief, the Court became noticeably more rights-protective than it had been, and it did so by applying its own case law, despite the continuing opposite direction of contemporary Supreme Court jurisprudence. (14)

    A couple of years into the Kaye Court, however, it changed. It did so dramatically. Both the circumstances and the consequences were striking. Beginning in late 1995, the recently elected Republican Governor George Pataki, commenced a campaign of publicly castigating the Court of Appeals. He condemned the Court for "irrational, mindless procedural safeguards for criminals," for "putting the rights of the defendant ... ahead of the rights of the people to walk the streets, go to school, and live at home in safety," for "protecting the guilty and not the innocent," etc. (15) The governor's tirades against the Court were joined by other politicians and by the New York tabloids. (16) The criticisms, however inaccurate or even outlandish they might have been, (17) seemed to have an impact. The Court's decisions, the judges' voting, and other observable patterns changed.

    In criminal cases, the specific area of law signaled out for the harshest rebuke, the before-and-after differences were stark. Moreover, these differences were particularly revealing. Criminal law, with its ever-present tension between "law and order" and the rights of the accused, is especially sensitive to political changes and leanings. (18)

    In deciding these criminal cases, the Court of Appeals became considerably more pro-prosecution. The proportion of its decisions finding merit in the claims of the accused dropped substantially. The drop was not a mere aberration. Instead, it persisted, establishing a sharp and continued contrast with the years prior to "the court-bashing." (19)

    This rightward swing was observable in the voting patterns of two of the Court's more liberal members. (20) Chief Judge Kaye's voting in favor of the accused dropped in half immediately following the Pataki-instigated excoriation of the Court. Judge Carmen Ciparick's dropped a couple of years later. (21) As with the change in the Court's decisions, the change in Kaye's and Ciparick's voting was not aberrational. The pro-prosecution swing in the voting of each of those two judges was part of a pattern that evinced a clear and substantial contrast between the years before and the years after the court-bashing. (22)

    There were other changes that corroborate what the timing of the decisional and voting shifts certainly suggest--i.e., that the shifts were not mere happenstance. At the same time that those shifts were taking place, the Court began to grant appeals in fewer criminal cases. The very kind of cases that were the subject of the critical uproar against the Court were now being accepted for review in significantly reduced numbers. (23) In fact, the number of criminal grants by the Court was cut nearly in half immediately. Moreover, that sharp decrease was not an aberration, any more than was the pro-prosecution shift in the Court's decisional and voting patterns. Rather, it persisted and, within a few years, the number of criminal grants was reduced to less than half of what it was prior to the court-bashing. (24)

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    There was also the matter of dissents. More specifically, there was the matter of the sharply reduced frequency with which dissenting opinions were being written. There is strength in numbers--on a court as elsewhere. There is strength in unity--in consensus and, even more so, in unanimity. A divided opinion confirms that there is more than one way to decide a case. It leaves the judges in the majority more exposed than in a unanimous decision to criticism that they got it wrong. The proof, as well as the criticism itself, is right there in the dissent.

    Not surprisingly then, judges who have endured harsh public criticism might favor unanimous opinions. A Court that has endured the kind of public denunciation that the Court of Appeals did at the hands of Pataki et. al might well seek some cover and consolation in unanimity whenever possible. Whether or not these were the reasons, the number of divided decisions at the Court did drop precipitously following the court-bashing.

    As with the number of criminal grants, the number of decisions with dissent declined sharply at the same time that the Court's decisional and voting patterns turned more pro-prosecution. In the years prior to the court-bashing, the number of cases with dissent averaged around forty annually. Afterwards, the number was typically less than half of that. (25)

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    A rightward shift in decisions and in voting. A dramatic drop in criminal grants. An even greater drop in decisions with dissent. All occurring in the immediate aftermath of the Pataki-initiated public denunciation...

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