Friday, December 2, 2016

Want Scalia-type Justices? Really? (Part 2: Equal Rights for Women)

In the introductory post, I mentioned several areas of the law in which many of the self-proclaimed admirers of the late Justice Scalia are likely unfamiliar with his actual record, would likely be less admiring if they knew it, or, at the least, would likely express disagreement if they were confronted with it. This applies to both President-elect Trump and to those supposed "Scalia-types" on his list of possibilities for the Supreme Court. Among those areas of the law--and Scalia's record--let's begin with equal protection for women.

Surely, there are some absolute essentials we can all--hopefully--agree upon. Some bare basics of a free and just society. At the very very least, we should be able to agree that our judges believe in certain fundamental principles, that they are committed to them, and that they adhere to them in rendering decisions.

Equal treatment, for example. "Equal protection of the laws" is how the Constitution puts it, and guarantees it. At the very least, our judges should believe in that, be committed to that, and adhere to that.

To be sure, in specific cases, on specific issues, there are good faith disagreements as to what equal treatment entails. But--again hopefully--we can all agree that deliberate, harmful, anachronistic, discriminatory treatment of people based on irrelevant considerations should not be tolerated. Judges rendering decisions under the law should not tolerate it. Judges who, instead, actually endorse or embrace such discrimination are unworthy of their positions and, most certainly, ought not to sit on the nation's highest court.

So when the President-elect says that he admired Justice Scalia and will appoint Justices to the Supreme Court like him, and when other self-proclaimed Scalia admirers cheer, we ought to see what they are admiring and cheering about. Or whether they don't actually know what they are admiring and cheering.

Photo: Bill Pugliano
Getty Images
For instance, Scalia's record on discrimination. As with other issues mentioned in the introductory post, we will examine his actual record on discrimination. Then the question to be asked is, do his self-proclaimed admirers really admire that? Do they really want Justices who agree with Scalia on that? Justices who will vote like Scalia did on that ? Really?

Let's try equal protection for women. Not even issues as controversial as abortion rights. But basic protection of women from discrimination against them because they are women.

Scalia believed that women are not entitled to equal protection under the Constitution. That's right. Not entitled to equal protection. This isn't conjecture. He actually said so. He actually voted and wrote that way. That was his actual record both off and on the Court. Admirers of Scalia, do you really admire that? Really want Justices like that?

Here's what Scalia said a few years before he passed away, in an interview co-hosted by the California Lawyer and the University of California's Hastings College of Law:
Question: In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination...So does that mean that we’ve gone off in error?
Scalia: Yes, yes. Sorry, to tell you that...Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.

Scalia admirers, you really want Supreme Court Justices who agree with that? And potential Trump nominees, you really agree with that?

[Following considerable critical reaction to those unequivocal assertions of his, Scalia then equivocated. In an interview in New York magazine 2 years later: "No, you can’t treat women differently, give them higher criminal sentences. Of course not...The issue is not whether it prohibits discrimination on the basis of sex. Of course it does. The issue is, 'What is discrimination?If there’s a reasonable basis for not ­letting women do something."]

Lest Scalia's remarks in the California Lawyer interview be discounted as not what he really meant, he argued the same thing on numerous occasions. For example, there was Scalia's dissenting opinion in U.S. v. Virginia (1996). The Supreme Court ruled in that case that it was unconstitutional discrimination for women to be denied admission to the Virginia Military Institute. Scalia disagreed--the only Justice to do so, Republican or Democrat, conservative or liberal.

His disagreement? The majority was not "preserv[ing] our society's values regarding…equal protection." To be sure he was being clear, he cited older Supreme Court decisions that reflected the "values" that he believed should be "preserved." He cited favorably an older decision that upheld laws keeping women off jury rolls (Hoyt v. Florida [1961]), and another one that upheld laws prohibiting women from tending bar (Goesaert v. Cleary [1948]). The Court, in his view, should continue with such rulings.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Then there was his dissenting opinion in J.E.B. v. Alabama (1994). The Supreme Court in that case ruled that it was unconstitutional--a violation of equal protection--for the government's attorney to intentionally exclude potential jurors on the basis of their sex. Scalia disagreed with the majority that there was any problem with gender-based selection of jurors. Indeed, he belittled the majority for its "inspiring demonstration of how sternly we disapprove the male chauvinist attitudes of our predecessors," and for "pay[ing] conspicuous obeisance to the equality of the sexes."

Scalia-admirers, do you really want Justices who would approve "male chauvinist attitudes of our predecessors" in the law, and who would disapprove the constitutional "equality of the sexes?" Potential Trump nominees, do you really agree with Scalia on that?

There are abundant illustrations in Scalia's record of the same contempt for women's equality under the Constitution. He didn't believe in it. That's just fact. That's his actual record.

Scalia-admirers, do you really want Justices like that? Potential Trump nominees, do you really agree with that?

Next, Scalia's record on the treatment of gays and lesbians--and presumably his views on the entire range of LGBT issues. He was even more hostile!

Tuesday, November 22, 2016

Want Scalia-type Justices? Really?

Donald Trump
We've heard from President-elect Trump about how much he admired Justice Antonin Scalia. Since early in his campaign, he has repeated that he wants to appoint Justices like Scalia. Trump supporters, both in and out of government, have reacted with great enthusiasm.

To be sure, some actually know about Scalia's record. The Heritage Foundation and the Federalist Society presumably do. They are the two conservative organizations Trump has credited as sources for his list of potential nominees. And Trump has committed himself to choose from that list: "This list is definitive and I will choose only from it." (DONALD J. TRUMP FINALIZES LIST OF POTENTIAL SUPREME COURT JUSTICE PICKS, SEPTEMBER 23, 2016.)


Antonin Scalia
But how many of Trump's supporters and of the self-proclaimed Scalia admirers actually know much about Scalia's record? How much does Trump himself actually know? Perhaps even more critically, how much do those Senators, who now celebrate Trump's promise to appoint Scalia-like Justices, actually know? And how will they react if and when they are confronted by Scalia's actual record?

Beyond that, how will the supposed Scalia-admiring Trump nominee(s) themselves respond if and when confronted with Scalia's actual record? What about the public, if and when they learn about Scalia's actual record? How much will the supposed Scalia-admiring nominee(s) and Senators equivocate on their admiration if and when confronted by Scalia's actual record--especially if and when the prospect of a Scalia-like Justice becomes less popular among the public?

I'm referring to the body of his judicial work. His views on the most pressing constitutional issues of the day. The results he vigorously advocated. Those he fiercely condemned. His actual record.

His actual record, for example:
On freedom of religion. (A 2nd class constitutional right because of his--how else can I say it-- dishonest majority opinion involving a minority religion; ask any religious liberty scholar.)
Or search and seizure. (Not just stop and frisk, but government surveillance generally.)
Or cruel and unusual punishment. (Not just the death penalty, but barbaric, unnecessarily painful punishments.)
Or women's rights. (Not just abortion rights, but entitlement to equal protection.)
Or gay and lesbian rights. (Not just same-sex marriage, but any protection from discrimination.)
Etc., etc.
(We'll discuss each of these in the next post.)

Recall when the supporters of President Reagan's Supreme Court nominee Robert Bork were confronted with his actual record--his writings both on and off the bench. Bork's formerly strong support among the public, Reagan, and the Senate dissipated. Ultimately, of course, his nomination was defeated. A conservative jurist might well be appealing. But not one whose record, like Bork's, seemed to be--or was made to seem--downright reactionary.
(On a personal note, I got to know Judge Bork a bit the year I spent in Washington as a Supreme Court Fellow. I liked him very much and was sad to see him humiliated in defeat. I was not a fan of his record, but I was a fan of his.)

At least as much as Bork's, Scalia's record was downright reactionary. Call it originalist or textualist or traditionalist or constitutionalist or whatever adjective one might choose. Good, bad, or indifferent, it was reactionary.

Scalia wanted to take constitutional law back to 1787 when the Constitution was adopted, to 1792 when the Bill of Rights was approved, and 1868 when the 14th Amendment (inter alia , equal protection) was ratified. Perhaps he adopted this posture out of a sincere fidelity to his avowed view of the judicial role. Perhaps it was a convenient means to support the results he preferred to begin with. Whatever the truth of that, the positions he advocated on many of the most important constitutional issues of our time were downright reactionary.

But more to the point here, if and when the Senators and the public are confronted with Scalia's actual record--the reactionary results he preferred and positions he advocated--his supposed admirers may be less admiring and the supposed supporters of Scalia-like Justices less supportive. Yes, his positions on religious liberty, women's rights, search and seizure, cruel and unusual punishment, etc. His actual record with which the supposed Scalia-like Trump's nominee(s) and the supposed Scalia-admiring Senators should be confronted.

We'll take a survey of some of those positions advocated by Scalia--his actual record--in the next post.

Wednesday, November 9, 2016

Part 9 - Observations: Polarized? Decisions Unsigned? (Early DiFiore Court Patterns)

Well, we elected a new president yesterday. God bless our country through the next four years. Among many other things, whatever may become of the Supreme Court, we are fortunate in New York to have the Court of Appeals, which historically has provided some immunity from regrettable directions taken by the highest federal court.

We've already offered several observations about New York's highest court with Janet DiFiore as Chief Judge, a position she assumed this past February. (See Part 6, Part 7, Part 8.) In this post, we address two additional questions that arise from reviewing the voting and decisional output of the early DiFiore Court:
Is the Court polarized?
Has the Court resorted to unsigned decisions in significant cases?

The short answers: no, and sometimes yes.

No, New York's highest court is not polarized. Certainly not along the rigid ideological lines that have divided the Justices on the U.S. Supreme Court for the last few decades.
But yes, the Court of Appeals has occasionally been rendering decisions unsigned by the authoring Judge, even when the issue has been close, the law or its application has been unclear, and the Judges have been divided--sometimes deeply.

Let's take a look at the record.
Regarding the presence or absence of polarization, let's look at the 11 decisions rendered by a  4-3 majority. [Included are all 4-3 decisions through October.] That is, those rulings of the DiFiore Court--the disposition of the case and the rule of law announced--that were decided by a single vote.
Consider whether the 4-3 lineups, which evince the sharpest divisions among the Judges, show the kind of predictable patterns that that we've come to expect from the Supreme Court. Here are those cases:

People v. Johnson (3/29/16): co-defendant's out-of court statement [4-3].

People v. Badalamenti (4/5/16): "vicarious consent" to record child's conversation [4-3].

People v. Nelson (4/5/16): spectator conduct in the courtroom [4-3-0].

People v. John (4/28/16): right to cross-examine DNA analyst [4-3].

Sherman v. NYS Thruway Auth. (5/5/16): slip and fall liability [4-3].

Wally G. v. NYC Health & Hosps. Corp. (6/9/16): late notice of claim [4-3].

People v. Frankline (6/9/16): evidence of past crimes [4-3-0].

People v. Berry (6/14/16): sufficiency of child endangerment evidence [4-3].

People v. McCullough (6/28/16): reliability of eyewitness identification [4-3].

Pasternak v. Laboratory Corp. of Amer. (6/30/16): c/a in fraud and negligence [4-3].

M/O Jamal S. (10/27/16): search & seizure [4-3].

It should be clear from a survey of these lineups that the majorities have been constituted by different combinations of Judges. What has been most consistent, in these 11 most sharply divided decisions, is that different Judges have been voting with each other.

Having said that, a few other consistencies--or at least repetitions--have emerged:
    1) The most frequent majority in these 4-3 decisions--"frequent" as in only 3 of these cases--has been Chief Judge DiFiore and Judges Pigott, Stein, and Garcia. [Sherman, Wally G., and McCullough.]
    2) As a corollary to that, Judges Rivera, Abdus-Salaam, and Fahey were together in dissent in those same 3 cases; additionally, they were together with DiFiore in 1 of the cases to form a majority. [John.]
    3) There are pairs of Judges who voted together frequently in these 4-3 cases: Pigott & Garcia (10 times); Rivera & Abdus-Salaam and Rivera & Fahey (7 times each).
    4) On the other side of the coin, 2 of the Judges almost always voted in opposition: Rivera & Garcia (10 times).
    5) As has been clear in what we've seen in previous posts in this series, and has been underscored here, there are ideological bookends on this Court. Judges Rivera and Garcia have compiled the most liberal and conservative voting records, respectively. It is thus not surprising that they voted on opposite sides virtually every time in these most sharply divided decisions.

Finally, in 3 of these cases, the Court rendered its decision in an unsigned memorandum opinion. Consider: in each of these cases, 3 Judges disagreed with the Court's ruling, they did so in a separate opinion, and the bare majority rendered its decision in an opinion unsigned by the authoring Judge:
Sherman v. NYS Thruway Auth. (5/5/16): slip and fall liability [4-3, Unsigned Memorandum vs. Rivera, Abdus-Salaam, and Fahey in dissent];
People v. Frankline (6/9/16): past crimes evidence [4-3-0, Unsigned Memorandum vs Stein, Fahey, and Garcia in a separate concurring opinion]; and
People v. McCullough (6/28/16): reliability of eyewitness identification [4-3, Unsigned Memorandum vs. Rivera, Abdus-Salaam, and Fahey in dissent].

The Court did the same in other decisions in which at least one of its members authored a separate opinion taking issue with the unsigned majority:
People v. Davidson (6/7/16): power of special prosecutor [4-2, Unsigned Memorandum vs. Rivera & Abdus-Salaam in dissent];
People v. Reynolds (6/7/16): illegal plea condition [6-1, Unsigned Memorandum vs. Rivera in dissent];
People v. Joseph (10/25/16): burglary of a dwelling [6-1, Unsigned Memorandum vs. Stein in dissent]; and
M/O Yoga Vida (10/25/16): employer-employee relationship [4-2, Unsigned Memorandum vs. Rivera and Fahey in dissent].

Several years ago I noted the same thing about the Court at that time. (See Court of Appeals, 1990, 12 Pace L. Rev. 1, 53 [1992].) As I wrote at the time, addressing the somewhat curious incidence of unsigned majority opinions in significant divided cases: "It is not difficult to understand why opinions whose authors remain unnamed might tend to be less carefully considered and crafted than those that are signed...Most of those writings, to be kind, were unworthy of a distinguished tribunal."

A member of that Court publicly rebuked me for that observation, insisting that the Court issued unsigned memorandum opinions only when the law was well settled, when the resolution of the issue was clear, and when nothing significant was at stake. Of course, that explanation cum defense could hardly be taken seriously when the decisions I had referred to involved substantial constitutional questions on which members of the Court were deeply divided, as evidenced by strong, thoughtful, lengthy dissenting opinions.

Moreover, despite that one negative reaction to my observation, other members of the Court volunteered their agreement (as did other Court watchers) and noted that it was no mystery who was responsible for that development. Additionally, one Judge advised me that he/she would henceforth sign all opinions.

I hope that these several recent incidents of unsigned majority opinions, in cases involving close issues that generate divided decisions, does not portend a development in the DiFiore Court that had marred the Court's reputation in the past.

Monday, October 31, 2016

Part 8 - Observations: Generally Conservative (Early DiFiore Court Patterns)

We saw in the last post that the early DiFiore Court has compiled a record in criminal cases that is somewhat pro-prosecution. More specifically, in the first half-year of criminal appeals since Janet DiFiore has presided over New York's highest court as Chief Judge, the Court rendered decisions more favorable to the prosecution in 65% of those close, divided cases. Stated otherwise, the majority of the Judges voted for the more pro-prosecution position in nearly twice as many of those cases as it supported the position more favorable to the accused.

We also saw that in those divided criminal cases in which only one Judge dissented, most of the time it was Judge Jenny Rivera who had authored the lone dissenting opinion. Moreover, she sided with the accused in each of her sole dissents.

Let's now take another look at how frequently Rivera and her colleagues have been dissenting, whether in criminal or civil appeals. We did that earlier in this series. (See Part 1.) Here's that same data, just a bit reorganized and highlighted in the following graph:
(click on any graph to enlarge)

As reflected again in this graph, Judge Rivera--the sole pro-accused dissenter in most of the single dissent cases--has been the Court's most frequent dissenter. And again, by a wide margin.

Not surprisingly then, her record has been the most pro-accused of the Judges--once again, by a wide margin. Here's a reorganization of some data we've seen before to help with our present focus:


No other Judge on the Court comes close to judge Rivera in siding with the accused. Indeed, she compiled a record nearly 3 times as pro-accused as that of the Court as a whole. But more relevant to the observation being offered here, the record of the Court as a whole as seen in this graph, 35% pro-accused, is that the majority only adopted the more pro-accused position approximately one third of the time.

Of course, it might be argued that Judge Rivera's record is extreme, that her tendencies lean so far in favor of the rights of the accused, that her votes skew the data. (To be sure, Judge Rivera's record evinces unmistakable leanings toward vigorous protection of the rights of the accused. But a fair reading of her opinions hardly suggests extreme positions.) However, her pro-accused record is more than counterbalanced by that of two of her colleagues, Judges Michael Garcia and Eugene Pigott, at the other end of the Court's spectrum--i.e., 0% and 18% pro-accused, respectively.

Moreover, take a look at the total votes cast in divided criminal cases. That is, the cumulative number of votes cast by the Judges for the more pro-accused position and the more pro-prosecution position. This takes into account the votes within the most pro-accused and the most pro-prosecution records among the Judges, as well as the votes cast by every other member of the Court.


As the graph shows, the data is pretty clear. The total votes cast by the Judges in these divided criminal cases add up to a more conservative, pro-prosecution record--just what we've been seeing with other data. Whether looking at the data for Court decisions, for individual Judge's voting, or for cumulative votes, it's hard to escape the fact that the Court as a whole has been at least somewhat conservative in deciding criminal cases.

What about the non-criminal cases?

Let's start just as we did with the criminal decisions. Look again at the data on dissents. During this period, Judge Rivera was followed by Judge Eugene Fahey as the Court's most frequent dissenter. In criminal appeals, his record was half as pro-accused as Judge Rivera's, but it was still on the more pro-accused side of the Court. As for the civil cases, take a look:


As the graph shows, Judges Fahey and Rivera--the Court's two most frequent dissenters--have the Court's most liberal records in the civil cases. More than that, their records are several times more pro-worker, consumer, tenant, etc. than 3 members of the Court (Chief Judge DiFiore and Judges Pigott and Garcia), and at least 3 times that of the Court as a whole.

As we did with the records in criminal cases, let's look at the cumulative number of votes cast by the Judges in the divided civil cases:


As in the criminal cases, the cumulative votes in the civil cases confirm the Court's overall conservative bent. (The Court's mere 25% liberal decisional record reflected in the previous graph might seem at odds with this closer 22 versus 30 cumulative vote total. But much of the seeming discrepancy is attributable to the bare 1 vote conservative majorities in the several 4-3 civil decisions. See Part 3.)

So, whether we look at the data from the criminal cases where the Court's record leans pro-prosecution, or from the civil cases where it leans somewhat more strongly pro-employer, business, tenant, etc., the early DiFiore Court's overall record is generally conservative. Not lopsidedly so. Indeed, it would be absurd to label this a right-wing Court. But if one had to choose between its being more liberal or more conservative, the latter would seem more accurate.

To conclude, let's add the cumulative criminal case and civil case votes. Here it is:


This graph reflects all the votes by all the Judges in the divided criminal and civil cases combined. It reflects the total votes of the Judges with the most liberal records (i.e., pro-accused, and pro-worker, consumer, tenant, etc.), those Judges with the most conservative (i.e., pro-prosecution, and pro-employer, business, landlord, etc.), and those Judges with records in between. To be brief: half again as conservative as liberal.

Sooooo, this is the record of the early DiFiore Court. The votes and the resulting decisions have generally been conservative.
[To those who are wondering: yes, in future posts I will be updating all that we've been discussing to include what the Court does in the remaining months of the first year of the DiFiore Court.)

One final point. Lest any of the foregoing be misconstrued, the observations here are not about the Court's being right or wrong, wise or foolish, or the same or different than I would have preferred. The observations are simply what the data can reveal, which is that the Court's record has been more conservative than liberal.
[Disclosure: I would have been somewhat more liberal, especially in the civil cases.]

One last observation in the next post.

Friday, October 28, 2016

Part 7 - Observations: Leaning Pro-Prosecution (Early DiFiore Court Patterns)

(The Court released a flurry of decisions this past week. One notable development is that the Chief Judge has voted in dissent a second time [M/O Jamal S.] and, as in the first, it was a 4-3 decision. This latest crop of decisions does not, however, alter any of the general patterns evinced in the "Early DiFiore Court" figures with which we've been dealing, nor does it suggest a change in any of the concluding observations now being offered.)

We have already seen the breakdown of pro-prosecution versus pro-accused in divided decisions in the early DiFiore Court. That is, in every decision by New York's highest court in a criminal appeal in the first 6 months of the Chief Judge DiFiore era, where at least one of the Judges disagreed with the majority--either in a dissent or a separate concurring opinion taking issue with the majority's analysis. There were 17 such divided decisions.

Specifically, we have already looked at the frequency with which each of the Judges voted for positions more favorable to the prosecution, and for positions more favorable to the accused. Here is what we've seen, focusing now on the pro-prosecution data:
(click on any graph to enlarge)
First, the Court as a whole sided with the prosecution, i.e., adopted the more pro-prosecution side of the issue that divided the Judges, most of the time. In fact, in a considerable majority, 65%, of those cases.

Beyond that, every Judge but one--Judge Jenny Rivera--sided with the prosecution in more of the cases than not. Several of those Judges voted for the more pro-prosecution position in a high percentage of those cases, i.e., Chief Judge Janet DiFiore, and Judges Eugene Pigott and Michael Garcia. In fact, Judge Garcia voted pro-prosecution in every one of these cases in which he participated (15 out of 15), and Judge Pigott did so in nearly every one (14 out of 17).

By sharp contrast, and alone in supporting the prosecution less than half the time, was Judge Rivera. Indeed, she virtually never voted for the more pro-prosecution position in these cases (1 out of 17). No other member of the Court has a record that even approaches hers.

But let's look a bit closer at these figures. Let's limit our focus to those decisions where at least 2 of the Judges disagreed with the majority. That is, those cases where at least 2 Judges on the 7 member Court had a different view than the majority of their colleagues. So let's eliminate those cases where a single Judge dissented. Here's what that looks like:
When restricting our focus to these cases, i.e., the 11 decisions where the Judges split 4 to 3 or 5 to 2 [or 4 to 2 where one of the Judges did not participate], the Court's record appears less one sided. It's 55% pro-prosecution record (6 out of 11 cases) seems much more evenly balanced.

In fact, 3 of the Judges--Rivera, Sheila Abdus-Salaam, and Eugene Fahey--have records supporting the pro-prosecution position less than half of the time. And only two members of the Court--Pigott (9 out of 11 cases) and Garcia (11 out of 11)--have records that are unequivocally pro-prosecution.

All of this suggests that the single-dissent decisions, the 6 remaining divided decisions, are the ones that make the overall record of the Court seem so strongly pro-prosecution. So let's look at the records compiled in those 6 cases. To underscore the contrast, we'll focus on the pro-accused voting.
Sure enough, the records in these single-dissent cases reveal why the Court's overall record, i.e., when all the divided cases are considered, appears so pro-prosecution. Judge Rivera, whose record has been shown to be the least pro-prosecution within the Court by a wide margin, voted for the more pro-accused position in all 6 of these cases. Once again, no other Judge's record approaches hers.

Among the other Judges, 3 of them--Pigott, Abdus-Salaam, and Leslie Stein--voted pro-accused only once. The 3 remaining Judges--DiFiore, Fahey, and Garcia--never voted that way in any of these cases. (It must be added, however, that Chief Judge DiFiore and Judge Garcia did not participate in 2 of the cases, including that 1 case where all the other Judges, except Fahey, sided with the accused.)

As the figures in this graph reveal, in 5 of these 6 single-dissent cases, Judge Rivera was the lone dissenter, and she sided with the accused each time. To put it differently, in 5 of these 6 cases, all the other participating Judges of the Court took the more pro-prosecution position. It is these single-Rivera-dissent cases which make the Court's overall record, as well as the records of some of the other Judges, appear so pro-prosecution.

What is nevertheless true, what emerges regardless of how the data are viewed, is that Judges Pigott and Garcia do have distinctively pro-prosecution records. What is also true, is that in most of the single-dissent cases--5 out of 6 of them--the Court's majority did side with the prosecution, while only one of the Judges supported the accused.

It would not seem accurate to label the record of the early DiFiore Court as unambiguously pro-prosecution. Or even strongly so when the record is closely analyzed. But it would be fair to say that the record is certainly not pro-accused.

Judge Rivera's record is clearly pro-accused. But her record stands alone. The records of Judges Abdus-Salaam and Fahey may be considered pro-accused when contrasted with that of some other members of the Court and of the Court itself.

On the other hand, the records of the Chief Judge and Judge Stein are somewhat pro-prosecution, especially when contrasted with those of Rivera, Abdus-Salaam, and Fahey. When added to the decidedly pro-prosecution records of Judges Pigott and Garcia, it is no surprise that the record of the Court as a whole leans pro-prosecution.

And that's probably the fairest way to put it. The early DiFiore Court has been leaning pro-prosecution.


Next, we'll see what can be concluded from the dissents thus far in the Court's decisions.