Capital Tonight: Previewing Some Major Cases This Supreme Court Term

CAPITAL TONIGHT

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The Incredible Shrinking Docket: Criminal Appeals (CLA's) Granted by Court of Appeals Judges

I wish Chief Judge Janet DiFiore, of whom I am personally fond, the very best on her announced departure from the Court.

Oral Arguments/Court of Appeals Website

We've previously looked at the Court of Appeals' dramatically reduced caseload over the past few years--both the total appeals and, separately, the criminal cases. Now let's look closer into the latter.

Let's see how many criminal cases the Court itself has been choosing to hear--as opposed to criminal cases reaching the Court as of right or because an Appellate Division Justice granted leave to appeal. Let's compare those recent CLA (Criminal Leave Application) numbers with the numbers in the past. Then let's see how many CLA's each of the individual Judges has been granting.

(For those who may not be familiar, here's a quick outline of the CLA process:

When a party, whether prosecution or defense, loses in the court below, it may choose to apply to the Court of Appeals for review. That "Criminal Leave Application" (CLA) is assigned by the Court to one Judge who alone decides whether or not the Court will hear the appeal. These CLAs are distributed equally and randomly to the individual Judges. As might be expected, some Judges are more generous in granting CLAs, and some Judges are less so. For this reason, the process is viewed by many as inherently unfair, and certainly less fair than the different procedure for civil cases, in which the entire Court decides whether to hear the appeal. The odds of having one's CLA granted and, therefore, of having one's case reviewed by the Court, depend to a large extent on the particular Judge to whom the CLA is assigned.)

Here's a look at the collective number of CLAs granted by the Judges of Court for each year from 1988 through 2021. That span of time covers the last several years of the Court under Chief Judge Sol Wachtler, the entire tenures of Judith Kaye and Jonathan Lippman in the center seat, and continues through the last several years with Janet DiFiore presiding:

(click to enlarge for a better view)

Similar to the figures we've seen previously regarding the Court's caseload (the total appeals and the criminal cases), the Court under Chief Judge DiFiore has been granting far fewer CLAs than the Court had typically done in past years. Indeed, as clearly shown in the graph, the decrease has been drastic. And that decrease began as soon as DiFiore replaced her retired predecessor, Jonathan Lippman.

Let's simplify the graph a bit by looking at 5-year averages--again from the tenure of Chief Judge Sol Wachtler through the recent years under DiFiore. Take a look:

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As the graph makes plain, the Judges of the Court under Chief Judge DiFiore have been granting less than half the number of Criminal Leave Applications that the Judges had been granting under Chief Judges Wachtler and Lippman, as well as during the early years of Chief Judge Kaye's tenure. The only era approaching the decrease that has occurred under DiFiore is that which occurred in the last several years under Kaye. (Notably, that decrease under Kaye followed Republican then-Governor Pataki's harsh criticism of the Court for "coddling" criminals and his appointing a majority of "law and order" Judges to the Court.)

For a seven-Judge court, the annual average of 49 CLA grants under DiFiore equates to an average of  7 CLA grants per Judge. That contrasts with over 14 per Judge under Lippman and during the early years of Kaye's tenure, and with even more than that under Wachtler.

Let's now look more closely at the contrast in CLA grants from the years with Lippman as Chief Judge to those under DiFiore. Specifically, let's take a look at the number of CLAs granted by the individual Judges during those two eras. Here it is:

(click to enlarge for a better view)

[The graph includes the records of all the Judges who were on the Court for at least 3 of the 5 years under either Chief Judge Lippman or DiFiore. All the Judges were on the Court for the full 5 years in the respective eras, except for the Judges who were on for 3 years as indicated by an asterisk.]

As the graph shows, under Chief Judge Lippman, every Judge, except one (Susan Read), was granting more CLAs per year than every Judge has been doing under DiFiore. In fact, Chief Judge Lippman and Judges Victoria Graffeo, Eugene Pigott, and Robert Smith--the latter 3 all appointees of Republican Pataki--were granting more than twice as many CLAs as every Judge has been doing under DiFiore, except for Judge Rowan Wilson.

Notably, Wilson has been granting significantly more CLAs than any other Judge under DiFiore, and he is the only one whose grants approach that of most of the Judges under Lippman. By sharp contrast, three of the Judges under DiFiore--the Chief Judge herself and Judges Leslie Stein and Michael Garcia--granted less than 1/3 of any Judge under Lippman, and far less than that compared to some of the Lippman Judges. In fact, DiFiore, Stein, and Garcia granted less than 1/2 of any other Judge during DiFiore's tenure.

What does all this mean? Well, the most obvious is that parties in criminal cases had a much greater chance of having an appeal heard by New York's highest Court under Chief Judge Lippman than under DiFiore. Beyond that, parties seeking to have their cases reviewed in recent years had better odds of succeeding if their CLAs were assigned to Judge Wilson than to other Judges on the Court. Indeed, if the parties' CLAs were assigned to DiFiore, Stein, or Garcia, their odds of having the Court of Appeals review their cases were greatly diminished than if their CLAs had been assigned to other Judges on the Court--not only Wilson, but also Judges Jenny Rivera or Eugene Fahey.

It is no wonder that the CLA process has come under so much bitter criticism by so many lawyers, judges, and their related organizations. Many agree with Judge Pigott--who happened to serve under Chief Judges Kaye, Lippman, and DiFiore. He has been outspoken about the CLA process in which he had a good deal of experience: "There’s no doubt this has to change. It’s absurd." [As quoted in, Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

Yes, in my view, absurd and terribly unfair. And those characteristics are only intensified when the Court, and specifically some members of the Court, drastically reduce the number of CLAs being granted.

The Incredible Shrinking Docket: The Court of Appeals' CRIMINAL Caseload (with graphs!)

We've previously looked at the reduction in the caseload at New York's highest court. (See The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload [The Graph].) Now we'll focus specifically on criminal appeals.

Credit: Daniel case

The magnificent Court of Appeals courtroom.

This has been a source of considerable consternation for the state's criminal defense bar. The lack of criminal defense experience among the judges, the decidedly pro-prosecution direction of the Court's decisions, and the sharp decrease in criminal appeals being accepted for review and decided--these have all been the subject of much disappointment and criticism.

The recent complaint of one prominent defense attorney is typical: “The Court of Appeals under [Gov. Andrew] Cuomo’s appointments has been moving further and further to the right, which is troubling given that the voting patterns of the state of New York demonstrate that the people of New York don’t view the world that way,”

[Alice Fontier, immediate past president of the New York State Association of Criminal Defense Lawyers, as quoted in Progressives Mobilize to Block Cuomo’s Tough-on-Crime Pick For Highest NY Court, by Sam Mellins, New York Focus, June 4, 2021.]

And another: "The court had done more work in the past. So what’s going on and what’s driving that change?" said Susan Bryant, executive director of the New York State Defenders Association. "I think anytime you see a significant shift in a court hearing cases, it’s concerning."

[See Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

It's not just criminal defense lawyers who have perceived a problem. Indeed, two recently retired Court of Appeals Judges, Eugene Pigott and Robert Smith, have both expressed concern about the process in which criminal cases are granted an appeal. The random assignment of CLA's [Criminal Leave Applications] to a single Judge, who is then the sole decider of whether a criminal appeal is heard by the Court, inevitably introduces a considerable degree of arbitrariness into the system.

Some Judges are much more generous in granting CLA's. Others are much less so. Hence, the odds of an appeal being accepted is necessarily affected by which Judge happens to get the CLA. Moreover, the wisdom and consistency of the process, as well as its fairness, would undoubtedly be enhanced if more than one Judge--let alone the entire Court, as in civil cases--reviewed the applications seeking an appeal.

Many share the view of Judge Pigott who has been quite pointed: "There’s no doubt this has to change. It’s absurd." [As quoted by Yancey Roy, cited above.]

[Disclosure: I do share the concerns of the criminal defense lawyers and I emphatically agree with Judge Pigott.]

But regardless of one's view of the Court's current treatment of criminal cases generally or of the CLA process in particular, there are the facts. Let's get to them.

First, let's take a look at the Court's criminal caseload. Specifically, let's look at the number of criminal appeals decided annually over the years. Previously, when we looked at the total number of appeals decided--civil and criminal--we began with the Court during the tenure of Chief Judge Sol Wachtler and continued through the Court under Judith Kaye, Jonathan Lippman, and currently under Janet DiFiore. We'll do the same with criminal appeals.

Here's the data, from the Court's own Annual Reports, on the number of criminal appeals it decided each year beginning with 1988, while Wachtler was Chief Judge, through 2021, the last period for which data is available. I've already graphed it all for ease of comparison visualization (and because I myself enjoy these):

(click to enlarge for a better view)

As is clear from the graph, the number of criminal appeals decided by New York's highest court has declined dramatically in recent years--drastically if you ask the criminal defense bar. It mirrors the decrease in the total criminal plus civil caseload that we've previously seen.

The criminal caseload remained roughly the same from the latter years of Wachtler's tenure as Chief Judge through the early years under Kaye. It then dropped significantly during the remaining years of Kaye's tenure, rose again significantly while Lippman was Chief Judge, only to drop once more the last several years under DiFiore. In fact, the current criminal caseload at the Court is the lowest it has ever been throughout this entire period--the only equivalent being the very lowest it was during a time of plummeting caseloads under Kaye.

To say the same thing with figures: the Court decided at least 90 criminal appeals annually, and usually more than 100, under Wachtler and through the first several years of Kay's tenure. Thereafter--and following then-Governor Pataki's relentless bashing of the Court for supposedly coddling criminals and disfavoring victims--the Court under Kaye sharply cut its criminal caseload. With some fluctuation, the annual number was roughly half of what it had been--from over 100 to less than 50 in some years.

When Lippman became Chief Judge, he made clear his intent to increase access to the Court and, perhaps most emphatically, to increase the number of criminal appeals the Court would hear.

(See Joel Stashenko, "Chief Judge to Review Why Court Accepts Few Criminal Appeals," NYLJ, April 22, 2009; also NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? [Part 1: Overview].)

Consequently, the Court's criminal caseload under Lippman increased as sharply as it had just previously dropped. Throughout his tenure, the Court would hear at least 90 criminal appeals annually, and in some years more than 100.

During the first year of DiFiore's tenure as Chief Judge, when the Court was hearing criminal cases largely accepted for review the year before under Lippman, the criminal caseload exceeded 100. Ever since, however, there has been a steep decline. In recent years, the Court has decided 40+ criminal appeals, which is half of what the Court's criminal caseload was under Lippman. Indeed, it is less than half of what it was under Wachtler or during the first several years under Kaye. It is even less than it was after the caseload plummeted under Kaye.

Let's conclude with another graph that may help to simplify all these figures. Here are the 5-year averages of the Court's annual criminal caseloads, again from Wachtler to DiFiore:

(click to enlarge for a better view)

As this graph makes crystal clear, across much of the last several decades, the Court of Appeals decided 100 or more criminal cases a year. The Court decided far fewer in two separate periods: the latter part of the Kaye era and the last several years under Chief Judge DiFiore.

Whatever the particular causes or rationale, the Court's caseload in both of these periods dropped to approximately half of what it had been in the immediately preceding years. Such dramatic changes would seem strongly to evince deliberate policy choices. One of the Court's recent retirees, interviewed about the recent drop in the criminal caseload, was reported to have explained that "the chief judge’s approach set a tone. 'I do think it made a difference who the chief was,' [former Judge Robert] Smith said. 'Leadership has an effect.'" [From Yancey Roy, cited above.]

[It should be noted that the Court's total caseloads--civil plus criminal--were much greater prior to the periods discussed and depicted in the two graphs, as well as in the two previous posts. For example, throughout the early 1980's, the Court's total caseload was more than double what it would be in the latter years of the Wachtler era. The Court would regularly decide more than 700 appeals annually. That total caseload dropped significantly in the later 1980's after the Court's jurisdiction was legislatively changed, effective in 1986, to give it much greater control over its docket.]

We'll next look at the number of CLA's [Criminal Leave Applications] granted by the Court annually over the years and, recently, how many CLA's the individual members of the Court have been granting.

The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload (The Graph)

In The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload, we looked at the total appeals decided by New York's highest court each year from 1988 through 2021, the last full year for which figures are available. The data are all derived from the Court's own Annual Reports.

The visualization of the reduction in caseload over the years makes clear just how dramatic it has been, especially recently. Here it is:

(click to enlarge for a better view)

As discussed previously and now depicted in the graph above, the total of appeals decided annually by the Court has, indeed, fallen dramatically from what it had been. During the last several years of Sol Wachtler's tenure as Chief Judge through the early years of Judith Kaye's, New York's highest court typically decided almost 300 appeals annually. There was a significant drop in the later years of Kaye's tenure and then an increase while Jonathan Lippman was Chief Judge. Most recently, during Chief Judge Janet DiFiore's tenure, the total appeals decided annually dropped significantly to levels not previously seen.

Again, it may well be argued whether this development is a good thing or a bad one. But there can be no argument that the Court today is deciding fewer cases--much, much fewer.

Next post on the Court's caseload, we'll look at criminal appeals, including which Judges are granting and which Judges aren't.

The No-Longer-Just-Leaked Opinion--Constitutional Nonsense Revisited (Part 4)

The now-official opinion by Justice Samuel Alito for the Supreme Court in Dobbs v. Jackson Women's Health Organization, overturning Roe v. Wade and eliminating any right to choose an abortion, repeats what we've seen previously when the draft was leaked:

As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.

As discussed in previous posts on New York Court Watcher, this argument is utter nonsense and dangerous. (See The Leaked Opinion--Constitutional Nonsense Revisited [Part 1], in which we looked at "it's-not-in-the-text" of the Constitution; [Part 2], in which we considered "deeply rooted in this Nation's history and tradition;" and [Part 3], in which we examined Alito's assurance that his opinion applies only to abortion and that there's no reason to be concerned about any other rights.)

To recap very briefly, as explained in Part 1, most fundamental rights are nowhere mentioned in the text of the Constitution. The document is absolutely not a catalog of rights. It nowhere mentions, for example, the right to marry, the right to be intimate with one's partner, the right to have children, the right to have a friend, etc., etc., etc. Indeed, Alito's argument--now the argument of the Court--was prominently feared by the Framers of the Constitution and nearly defeated adding a Bill of Rights: the fear that mentioning any rights might be the basis for denying others not mentioned. That fear has now been realized and forms the primary basis in the Court's decision today to reject the right to choose an abortion.

As explained in Part 2, the secondary argument, relying on the country's history, could be used to support racial segregation and discrimination against women, as well as the criminalization of interracial marriage, the use of birth control, and gay and lesbian intimacy. All of those were an entrenched part of this Nation's history and tradition from the time of its founding until overruled by the Court in more recent times.

And in Part 3, the notion that this opinion applies only to the right to an abortion and to no other right was shown to be as much nonsense as the text and history arguments. Those were the same arguments made to the Supreme Court against any right to use birth control and to equal protection for women. The same arguments to uphold criminal laws against gays and lesbians, including against same-sex marriage. Indeed, these were the same arguments to uphold racial segregation and criminal laws against interracial marriage. Are these arguments now being revived, but only to be applied against rights the current conservative majority of the Court dislikes?

Well, Justice Thomas for one has made clear where the arguments embraced by the Court necessarily take it:

in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold [the right to use contraceptives], Lawrence [the right to engage in same-sex intimacy], and Obergefell [the right to marry for same-sex couples]. Because any substantive due process decision is “demonstrably erroneous,” we have a duty to “correct the error” established in those precedents.

Of course, Justice Thomas didn't mention Brown v. Board of Education [outlawing racial segregation], Loving v. Virginia [invalidating laws against interracial marriage], or Reed v. Reed [recognizing equal protection for women]. But all of those decisions, and many others, similarly rejected arguments that the Court majority applied today to uphold restrictions on abortion and to reject any right to choose. 

Justice Alito's introductory and concluding assertion is indisputably correct: Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Yes. But the very same was said--and in some cases can still be said--about racial integration, interracial marriage, women's rights, gay rights, consensual adult sex, contraceptives, etc. But also about gun rights, campaign finance, affirmative action, etc. Does the existence of sharply conflicting views really mean that the Supreme Court should leave those matters to the states?

Regardless of one's views about abortion--and, as I believe is undeniable: there are profound interests on both sides--the arguments applied by Alito, and now by the Court majority, to justify denying any right to choose are nonsense. And beyond that, if they are to be taken seriously, they place other rights recognized in Supreme Court landmarks in jeopardy.