Tuesday, May 15, 2018

(Part 2) The Gorsuch Factor in Coming Supreme Decisions

Neil Gorsuch took his seat on the Supreme Court in April 2017. For the next several weeks, till the end of the Court's term in late June of that year, Gorsuch made his mark. It was quick and pronounced.

Gorsuch with Scalia
Gorsuch had a track record from his years as a federal appellate judge on the 10th Circuit. That was also pronounced. Whether one has a favorable or unfavorable view of that track record, what simply cannot be denied--despite his Senate supporters best efforts--is that Gorsuch's record was a staunchly politically conservative one.
(See the previous post and the earlier ones cited therein: The Gorsuch Factor in Coming Supreme Decisions.)

Gorsuch established the very same sort of record as soon as he joined the Supreme Court last spring. Let's recall his votes and opinions from his several weeks on the Court at the end of last year's term. Again, whether one views his record favorably or not, its politically conservative character is clear--indeed, strident.

Death Penalty
In McGehee v. Hutchinson, Gorsuch cast his first public vote. He broke the Supreme Court's 4-4 tie to allow Arkansas to proceed with several executions that the state was rushing to complete, because its supply of lethal drugs was expiring.

Campaign Finance
In Republican Party of Louisiana v. FEC, the Court's majority summarily upheld--in a four word entry--a provision of the federal campaign finance law that prohibits unregulated contributions to political parties. Gorsuch, together with Justice Thomas, noted his disagreement with the majority and voted to take the case for a full appeal.

Employee Grievance
In Perry v. Merit Systems Protection Board, a 7-2 majority of the Court ruled that a worker could seek full judicial review of his discrimination claim, even though it was part of a civil service complaint. Gorsuch, joined by Thomas, dissented to require courts to affirm administrative rulings against workers, unless those rulings are utterly irrational.

Trump's Travel Ban
In Trump v. Int'l Refugee Asst Project, a  6-3 majority of the Court continued the injunction against much of the travel ban, but allowed the ban against persons "lack[ing] any bona fide relationship" to the United States." Gorsuch joined Thomas's dissenting opinion, arguing that even persons with "a close familial relationship" with an American could be banned by Trump.

Gay Rights
In Pavan v. Smith, on the basis of Obergefell v. Hodges--which recognized same-sex couples' right to marry--a 6-3 majority summarily invalidated Arkansas's refusal to include the name of  a same-sex spouse on the birth certificate of the biological mother's child. Gorsuch, joined by Thomas and Alito, dissented, arguing that "nothing in Obergefell" prevents a state from limiting birth certificates to biological parents.

Gun Rights
In Peruta v. California, the Court declined to review a  California law which generally prohibits concealed guns in public places. Gorsuch joined Thomas's dissent complaining that the majority's decision not to take the case "reflects a distressing trend: the treatment of the Second Amendment as a disfavored right." They also insisted that "the Framers made a clear choice [about] the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right."

Just consider the politically conservative position in these cases. Not the judicially restrained or strict constructionist or policy neutral positions. But the most likely position that would be taken by politically conservative politicians and ideologues.

Those are the positions taken by Justice Gorsuch. And those are the positions he consistently took as an appellate judge as well as during his first several weeks on the Court last year.

With that unmistakable track record, Justice Gorsuch would need to undergo a radical transformation not to have the same, stridently politically conservative record in the significant cases the Court will soon decide as it ends its term.

Friday, May 11, 2018

The Gorsuch Factor in Coming Supreme Decisions

As we near the end of the Supreme Court's term ("October 2017" or 2017-18 year), it's worthwhile to consider the likely impact of the newest Justice. The Republican-controlled Senate's refusal to consider President Obama's nomination of Judge Merrick Garland, and its subsequent confirmation of  President Trump's nominee, Judge Neil Gorsuch, at the very least meant that Republican appointees would be in the majority.

Following Justice Antonin Scalia's death in 2016, the Court was split 4 Democratic appointees to 4 Republicans. Scalia's absence and the resulting split were reflected in the decisional output of the Court's term that year, with several 4-4 splits in important cases and some very narrow rulings in others.

To be sure, the usual nonsense was repeated at the Senate confirmation hearing from Gorsuch's supporters. You know, he is "mainstream," he will "apply the law, not make it," he will "not make policy from the bench," he will not let his personal views influence his votes, he has no agenda, blah, blah, blah. Of course that's pure nonsense. This is not a Republican charade. The Democrats insist the same thing when supporting a Democratic nominee.

But the focus here is on Gorsuch. And about his likely impact on the important decisions that will be announced as the Supreme Court's term comes to an end the next several weeks.

Let's recall his record as a federal appellate judge on the 10th Circuit prior to his appointment to the Supreme Court. It is an extremely politically conservative record--we're not talking about some sophisticated judicial philosophy. (For a more comprehensive examination, see the 6 part series in New York Court Watcher last year that concluded with Gorsuch, Part 6: The Now-Justice Like the Then-Judge.)

A quick review of some representative highlights of his opinion record--or low-lights for those with different political leanings--leaves little doubt that Gorsuch is a conservative ideologue.

Women’s Rights
In Planned Parenthood of UT v. Herbert (2016), he dissented, arguing that the governor should be permitted to defund Planned Parenthood.

Church & State
In American Atheists v. Davenport (2010), he dissented, arguing that the state highway department should be permitted to erect 12 foot high crosses along the road.
In Green v. Haskell City (2009), he dissented, arguing that the municipality's display of the 10 Commandments on the courthouse lawn should be allowed.

Worker Rights
In TransAm Trucking v. U.S. Dept. of Labor (2016), he dissented, arguing that the trucking company should be permitted to fire a driver who left the rig to save himself from serious injury or death.
In NLRB v. Community Health Svcs. (2016), he dissented, arguing against paying the workers their full backpay that the company owed because of its unfair labor practice.
In Flitton v. Primary Residential Mortgage, Inc. (2010), he dissented, arguing against awarding attorney fees for the worker’s attorney in a successful employment discrimination litigation.

Death Penalty
In Elzember v. Trammell (2016), he wrote the majority opinion for the 3-judge panel, upholding the sentence despite a juror who had made clear a strong preference for the death penalty over life imprisonment; both the concurring and dissenting judges disagreed with the lax scrutiny applied by Gorsuch.
In Allen v. Workman (2012), he voted in dissent against the court's en banc decision to stay an execution until the prisoner's habeas corpus petition could be heard.

Hmmmm, connect the dots. Whether or not one agrees with the positions Gorsuch took in these cases, what cannot be denied is the pronounced politically conservative character of this record.

Next, we'll review the record he compiled in a few short weeks on the Court following his appointment last year.

Wednesday, May 9, 2018

NY Court of Appeals: More on Criminal Appeals

By my count, New York's highest Court last calendar year decided 31 criminal appeals in signed opinions. These, presumably, are the cases the Court deems sufficiently significant to require an opinion fully elaborating the majority's position on the issue(s) decided. They, therefore, do not include the unsigned decisions in a memorandum, where the analysis is typically much less comprehensive and, indeed, quite abbreviated most of the time.

Also in 2017, there were 17 decisions in criminal appeals where the Court was divided. In these non-unanimous cases, at least one of the Judges openly disagreed with the majority, either in a dissenting opinion or in a separate concurrence taking issue with the rule of law adopted or as applied by the majority.

By virtue of the Court of Appeals' position atop a mammoth judicial branch that handles, literally, a few million cases a year, those cases that do reach the high court are almost always the ones that are especially significant. Moreover, they are--again, almost always--the ones that are close enough to present strong arguments on both sides. A fortiori, this is particularly true where the Judges on the high court cannot agree on a disposition. Where at least one of the Judges feels strongly enough about the importance of the case that a public disagreement is justified.

So, as has been explained countless times over the years by judicial scholars--as well as by me, in this blog and elsewhere--these non-unanimous decisions are the most revealing. For that reason, let's focus on those in examining the decisional and voting record of the Court of Appeals in criminal cases.

Here's the breakdown in those close cases for the entire calendar year 2017:
(click on graph to enlarge)
As the graph shows, there were nearly twice as many votes for the prosecution than for the accused. While that mere comparison is significant, it becomes even more so when considering that these are the close cases that reach the Court of Appeals. More than that, these are the ones that are so close that there is open disagreement among the Judges. In short, in the closest of the close cases, voting at the Court of Appeals in 2017 was very strongly pro-prosecution.

Let's now look within those total votes. What about the voting of the individual Judges and the decisional record of the Court as a whole. Here it is:
(click on graph to enlarge)
As this graph shows, the Court's decisional record for 2017 was exceedingly pro-prosecution. Again, keep in mind that this is true despite the fact that these are the very close cases where there were strong arguments on both sides. The Court could legitimately have adopted the position of either side. And yet, overwhelmingly, the Court adopted the position that supported the prosecution--82% of the time by these calculations.

Here's the same graph from the pro-accused perspective:
(click on graph to enlarge)
So, in these close cases--again, where the Court could legitimately go either way--the Court supported the accused's position very infrequently. As the graph shows, beyond the record of the Court as a whole, only Judges Jenny Rivera and Rowan Wilson have voting records that evince particular sympathy for arguments raised by the accused on appeal in these close cases. At the other end of the spectrum is Judge Michael Garcia, who never sided with the accused on issues that divided the Court.

Of course, it could be that Judge Garcia always got it right. It could be that the positions he adopted were always the strongest. And it could be that Judges Rivera and Wilson usually got it wrong. Or it could be vice-versa to all of that.

But right or wrong, wise or foolish is not the point here. What is the point is the unmistakable, very pro-prosecution record of the Court this past year.

Tuesday, May 8, 2018

Living on Death Row


Edited by Hans Toch, James R. Acker, and Vincent Martin Bonventre

I had the privilege of assisting the eminent Hans Toch and James Acker, of the School of Criminal Justice of the University of Albany, in producing this volume. It was my high honor to be working with these extraordinarily distinguished scholars.
(click to enlarge)

Monday, May 7, 2018

NY Court of Appeals: Steep Cut in Criminal Cases (part 2)

(Crazy busy the last several weeks, but now back.)
The last time, we looked at the CLA figures for fall 2016 through summer 2017--i.e., the number of criminal leave applications granted by each Judge during that period. It was the most recent period for which I could confidently corroborate the data. (See last post.) Since that post, I've been able to corroborate the figures for the entire 2017 calendar year.

Here are those 2017 calendar year figures with some perspective:
(click on graph to enlarge)
This graph shows the CLA grants for each Judge in the last year of the Court under Chief Judge Jonathan Lippman contrasted with those for the first full calendar year under Chief Judge Janet DiFiore. I'm not sure anything needs to be added to what the graph itself shows about how striking that contrast is.
(The graph includes only those Judges who were on the Court for all or virtually all of each respective year.)

Chief Judge Lippman himself granted more CLA's than the entire Court n 2017. Judge Pigott himself granted almost as many as the 2017 Court.

The figures do not reveal why the number of CLA grants has dropped so precipitously--yes, other than the simple fact that the Judges are not granting as many. But the data over the years does reveal that this is not the first time such a drop has occurred. Take a look:
(click on graph to enlarge)
As this graph shows, the number of CLA grants plummeted at the Court several years into the tenure of Chief Judge Judith Kaye. The drop contrasted sharply with the number of CLA grants while Sol Wachtler was Chief Judge, as well as early in Kaye's tenure. The number of CLA grants then increased dramatically under Chief Judge Jonathan Lippman.
(This up and down and up again was explored in a series of posts early in Lippman's tenure. See series beginning with, NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? [Part 1: Overview].)

Here are those same figures in a less cluttered graph:
(click on graph to enlarge)
Averaging the years makes the contrast even clearer. In short, the CLA grants during both the Wachtler and Lippman eras at the Court were double that of the latter 10 years of the Kaye era.

Now let's insert the total CLA figures for 2017 to give them added perspective:
(click on graph to enlarge)
Again, the figures do not explain why the number of CLA grants has dropped so drastically, but they do show that the drop has indeed been drastic.
(N.B. the 2017 figures reflected in the graph are total: they do include the CLA grants for all the Judges, whether they were on the Court for all or part of the year.)

While the raw data does not explain the reduction in CLA grants, it does reveal a drop that is so dramatic that it is very hard to believe that it is mere accident and not the result of either a deliberate change in policy or some other significant phenomenon. The figures for 2018--whether they remain similarly low or they increase--may provide some insight, especially when viewed with other profiles and patterns.