Sunday, August 25, 2019

Trump's Justices: Gorsuch to Date (Part 2)

In the previous post, we saw how studies of Neil Gorsuch's judicial record prior to his nomination by President Trump for the Supreme Court showed him to be among the most politically conservative members of the federal judiciary. We also saw how his record immediately following his appointment, the last couple of months of the Supreme Court's 2016-17 term—the spring of 2017—reflected the very same strong politically conservative leanings.

In fact, together with Justice Clarence Thomas, his record on politically charged issues was the most politically conservative on the Court. Indeed, 100% politically conservative voting in cases involving the death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and similar politically divisive matters. Significantly, Gorsuch's 100% politically conservative voting record contrasted sharply with the 41% conservative decisional record of the Court as a whole. (See Trump's Justices (Part 1): Gorsuch to Date.)

Now what about Gorsuch's voting record for the next two terms on the Court—2017-18 and last term, 2018-19? Specifically, how did his voting record compare to that of the Court's other strongly politically conservative members, Justices Thomas and Samuel Alito, and to the Court as a whole? Let's take a look at the very next term, Gorsuch's first full one on the Court, the 2017-18 term (click to enlarge):
The politically charged issues confronted by the Court during the 2017-18—and voted on by Gorsuch—included Trump's travel ban (again), immigrant rights, abortion rights, gay rights, union representation, worker rights, voting rights, gerrymandering, search and seizure protections, and international human rights. In virtually every case, Gorsuch voted for the politically conservative position.

In fact, in some cases, Gorsuch took a position that was even more politically conservative than the already conservative majority or dissenting opinions. For example, in the Masterpiece Cakeshop case, where the bakery refused to create a cake for a same-sex marriage celebration, the majority of the Court ruled for the bakery on very narrow grounds. It held that the Colorado civil rights commission's decision, that the bakery was guilty of sexual orientation discrimination, was tainted by the commission members' explicit hostility to the baker's religion--comparing it to Nazi hatred of the Jews. In short, the Court majority ruled that the baker did not receive a fair hearing. But not that businesses were free to violate state anti-discrimination laws, even for religious reasons.

That decision of the Court was inadequate for Gorsuch. He authored a separate concurring opinion making the claim that the bakery did not actually engage in any discrimination at all—unlawful or otherwise. Gorsuch's rationale? The bakery would not create a same-sex cake for any couple, whether same-sex or opposite-sex. So the bakery was treating everyone the same. Not kidding!

(You know, like the old anti-miscegenation laws did not really discriminate against anyone. Everyone—black or white or Asian—was required to marry within their own race. So those laws treated everyone the same. Gorsuch's argument was reminiscent of that nonsense.)

Let's finish this post by taking a look at the ideological voting spectrum of the entire Court. Here it is (click to enlarge):
As the graph shows, Gorsuch's voting record was not only the most politically conservative on the Court, other than that of Justice Thomas, but it was also significantly more so than that of Chief Justice Roberts and the decisional record of the Court as a whole.

To be sure, the voting records of the Court's four liberal Justices, were at least as politically liberal as Gorsuch's record was politically conservative. But in nearly one-third of the cases, the Court as a whole joined the liberals, In a full one-quarter of those cases, the Chief Justice did. Gorsuch virtually never did—in fact, it was only one case. [I.e., Sessions v. Dimaya, involving the meaning of "crime of violence" as a basis for deporting immigrants.]

So once again, Justice Gorsuch's voting record on the Court—this time for the 2017-18 term—mirrors the studies based on his pre-appointment record as a federal appellate judge. In the next post, we'll look at Gorsuch's record in the next and most recent term, 2018-19.

Wednesday, August 7, 2019

Trump's Justices (Part 1): Gorsuch to Date

President Trump's first appointee, Neil Gorsuch, took his seat on the Supreme Court in the spring of 2017. By that time, judicial scholars--both political scientists and law professors--had studied his record on the federal appeals court from which he was elevated.

Based on his voting patterns as an appellate judge, Gorsuch's position among the other federal judges on the ideological spectrum had been mapped. Similarly, once he was nominated, his ideological place on the Supreme Court was predicted.

A 2016 study, sponsored by the University of Chicago, compiled and compared voting data on federal judges. A graph based on that data was published in the New York Times the following year when Gorsuch was nominated. It placed his record on the far right, politically conservative side of the federal judiciary. Here's that graph (click to enlarge):

Another study by a team of judicial scholars, led by Lee Epstein and published shortly following Trump's election, inserted Gorsuch among the sitting Justices on the Supreme Court's own ideological spectrum. Gorsuch was placed among the Court's most politically conservative members--between Justices Clarence Thomas and Samuel Alito. Indeed, he was determined to be even more politically conservative than the Justice he replaced, Antonin Scalia. Here's that graph (click to enlarge):
Source: Lee Epstein et al., President-Elect Trump
 and his Possible Justices
 (2016)
In yet another study, this one completed the following year, Gorsuch's appellate record again placed him among the Court's most politically conservative Justices. In fact, this study estimated that his policy preferences would position him at the far end of the Court's right wing. Here are those graphed findings (click to enlarge):
Source: Ryan Black, et al., Estimating the Policy
Preferences of Judge Neil M. Gorsuch
(2017)
It was thus widely expected, among those who closely study such things, that Gorsuch would be a very politically conservative Justice. Not a judicial restraintist. Not a stickler for stare decisis. Not one who defers to the other branches or to the states. Not a strict constructionist. Not a faithful adherent of previously settled constitutional principles. Not a philosophical conservative in a classic libertarian sense. But a conservative in the common contemporary political sense.

In short, how would conservative Republican politicians be expected to vote on the controversial issues of the day? And how closely would Justice Neil Gorsuch's voting align with conservative politicians on those issues?

Right from the start, in his first few months on the Court--from the time of his appointment in April of 2017 to the end of the 2016-17 term that spring--Gorsuch did cast votes on many such issues. The death penalty, campaign finance restrictions, gun rights, gay rights, workers' rights, church and state, President Trump's travel ban, and other politically charged issues among them.

What kind of record did he compile at the very start of his Supreme Court career? How did his record compare to that of other conservatives on the Court in that spring of 2017? Well, take a look (click to enlarge):

Justice Gorsuch's voting record, in his very first weeks on the Court, was at least as politically conservative as the judicial studies had predicted. From his appointment in April 2017, thru the end of the Court's term in the closing days of June, he compiled a voting record which, together with that of Justice Thomas, was the most conservative of the Justices.

On every one of those previously mentioned issues confronted by the Court in those final weeks of the 2016-17 term, the Justices were divided and Gorsuch, like his colleagues, chose sides. And on every one of those issues, he chose the politically conservative position--or the most politically conservative position when there was more than one.

So, for example, on the death penalty issue, he supported the execution. On campaign finance restrictions, he was against them. Gun rights, supported them. Gay rights, against them. Workers' rights, against them. Church and state, argued for lowering the wall of separation even more than the Court majority and other conservative Justices. Trump's travel ban, argued for upholding it to an even greater extent than the Court majority and other conservative Justices.

Indeed, as displayed in the graph, he took the politically conservative side--including the most politically conservative position among his colleagues--on those and every other politically charged issue that came before the Court in that spring of 2017 immediately upon his appointment.

And note well how starkly Gorsuch's politically conservative record on those politically charged issues contrasts with the record of the Court as a whole--100% politically conservative versus 41%. When the Justices divided between politically conservative and liberal sides, Gorsuch supported the conservative position. Even when the Court majority rendered a politically conservative decision, Gorsuch would sometimes argue for an even more politically conservative resolution.

In the next post, we'll take a closer look at some of this, including how Justice Gorsuch's voting record compared to that of all of his colleagues--not just the most conservative ones. And we'll look at his voting record in the following two full terms that he's been on the Court, 2017-18 and the term that just finished, 2018-19.

Wednesday, March 27, 2019

NYCOA: Criminal Appeals (Part 4c)--More Recent Dissents That Should Have Been Majorities

In the last post, we looked at two dissents that protested majority decisions at New York's highest court that overturned convictions because of errors having nothing to do with guilt or innocence, and where there was no suggestion that the alleged error by the trial judge had caused any prejudice to the defendant. (See Part 4b.)

Now we turn to the other two previously previewed dissents that protested majority decisions that upheld convictions, despite serious questions about guilt, and where the Court of Appeals would not even permit a hearing to consider actual innocence.

Again, cheers for those dissents as glimmers of hope amidst dismay at the majority decisions.

People v. Tiger (2018) (Wilson, J., dissenting)
People v. Thibodeau (2018) (Rivera, J., dissenting)
In both Tiger and Thibodeau, the defendants sought post-conviction relief on the basis of actual innocence. They each sought a hearing, pursuant to New York's Criminal Procedure Law, to present evidence that had not been previously available or previously considered and that raised serious questions about guilt. In both cases, the Court of Appeals majority would not even permit a fact-finding hearing to assess that evidence and consider the claims of actual innocence.

In Tiger, by a 5-2 vote, the Court held that a guilty plea was an absolute bar to a subsequent innocence claim. According to the majority, "a voluntary guilty plea is inconsistent with a claim of factual innocence."

The majority rejected the request for an innocence hearing despite the circumstances which led the defendant to plead guilty. Despite the defendant's exoneration of any wrongdoing in a subsequent civil case. And despite the unanimous conclusion of the Appellate Division (New York's intermediate appeals court) that the defendant had established a prima facie showing of innocence that justified a hearing.

Judge Wilson
Judge Rowan Wilson emphatically decried the rigidity of the majority's ruling and its seeming indifference to the injustices it perpetuates:
Natascha Tiger pleaded guilty but is innocent. 
Ms. Tiger is neither the first nor last innocent person to plead guilty. Ms. Tiger's case...provides a compelling example...Faced with seven years in prison, she pleaded guilty after her lawyer told her she could not afford to hire an expert and a guilty plea could result in a suspended sentence. 
Subsequently, when the [victim's] family sued Ms. Tiger[, e]ven though [they] had to satisfy only the "preponderance of the evidence" standard, and not the "beyond a reasonable doubt" standard, the jury found that Ms. Tiger did not cause the [victim's] injury. 
Our modern criminal justice system "is for the most part a system of pleas, not a system of trials."...We know that some completely innocent people plead guilty. In 2016, a record-setting 166 people were exonerated nationally. Of those, 74 exonerees, or 45 percent, were convicted based on guilty pleas. Of the nearly 2,000 individuals who were exonerated between  1989 and October 2016, 17 percent pleaded guilty....Research shows that innocent defendants may be motivated to plead guilty for a variety of reasons: most prominently, the threat of a more serious charge and a far longer sentence upon electing to go to trial, the fact that a plea will offer a release from pre-trial detention if the offense is low-level, and concerns about the defendant's lawyer or the availability of evidence that would conclusively demonstrate innocence. 
Relatedly, we also know that innocent suspects falsely confess...More than 20 percent of known exonerations for murder were at least in part due to false confessions... Consistently with the research on guilty pleas, the research on false confessions shows that "[t]he most potent psychological inducement is the suggestion that the suspect will be treated more leniently if he confesses and more punitively if he does not."  
The majority is focused on the importance of the finality of the plea process, and the appropriate conservation of judicial resources. Those concerns are weighty. But "conservation of judicial resources" does not appear alongside "life, liberty and the pursuit of happiness."  
Former Chief Judge Jonathan Lippman described our courts' mission thus: 
"Every wrongful conviction is a stain on the reputation of the courts, eroding public trust and confidence in the legitimacy of our institutional status and the fairness and accuracy of our decisions. This only underscores why the judiciary, the focal point of the entire justice system, is absolutely duty-bound to lead the way in making sure that the criminal justice process is as fair and accurate as humanly possible." 
Today's decision inexplicably and unnecessarily denies that mission, eschewing our obligation in favor of further legislative action or executive clemency. I will not. [Citations omitted throughout.]
To which I say, Amen!

In Thibodeau, in an unsigned memorandum for a bare 4-3 majority, the Court of Appeals rejected another substantial actual innocence claim on the same day. The defendant's post-conviction motion was denied by a hearing judge, despite considerable new evidence that others actually committed the kidnapping for which the defendant was convicted many years earlier. The hearing judge ruled that the evidence didn't even raise a "probability" that the verdict at trial would have been "more favorable." The Court of Appeals majority upheld the ruling below on the ground that it was not an abuse of discretion.

Judge Rivera
Judge Jenny Rivera's dissenting opinion set forth in detail the new evidence. In her view and that of two other Judges who joined her, that evidence severely undermined a conviction that was somewhat troubling from the start, and it persuasively demonstrated much more than a mere "probability" that others were guilty and the defendant innocent:

Defendant Gary Thibodeau has been incarcerated for over two decades—almost a third of his life—for the kidnapping of a young woman who disappeared one morning and was never seen again. No physical or forensic evidence connected defendant to the abduction, and no witness ever identified defendant as the kidnapper or placed him at the scene where the victim was taken. Nor has defendant confessed to having committed the crime; rather, he has always maintained his innocence. He now asserts that newly discovered evidence points to three men who have admitted to abducting and murdering the victim[, and he] asks for an opportunity to present this third-party culpability evidence to a jury. 
Defendant presented evidence that three [identified] men...abducted the victim..killed her, and disposed of her body by cutting it up and sending it to Canada in a vehicle being scrapped. The evidence consisted of testimony by a multitude of witnesses to these three men's inculpatory statements, as well as documents that corroborated their guilt and defendant's innocence. 
At the hearing on the motion, defendant presented additional testimony by various witnesses implicating [the three men] in the abduction, including confessions by these three to the victim's abduction and murder. 
[D]efendant presented an exhaustive amount of corroborating evidence for the confessions. [Inter alia,]several witnesses have testified to statements by these three declarants that not only implicate them in the victim's disappearance, but constitute admissions of guilt of kidnapping and murder. [Moreover, t]here is no evidence that the witnesses concocted these powerful third-party statements of guilt for defendant's benefit, nor of a motive for the declarants to inculpate themselves in a kidnapping and murder or exculpate defendant. The witnesses are a variety of ages, occupations, and levels of closeness to the three declarants. The incriminating statements themselves are also varied. At times, the declarants explained what had occurred...Other times, the statements were made as a blatant commentary that the declarant was immune to prosecution because the victim would never be found and the wrong persons—the Thibodeau brothers—were blamed for the crime. 
Contrary to the People's argument, it is not insignificant or irrelevant to our analysis that the various statements connected these declarants and pronounced their guilt of abducting the victim, her murder, and the subsequent cover-up. Far from suggesting fabrication or misperception, the interconnected and mutually-confirming nature of the statements reaffirms their reliability and the "hallmark of trustworthiness" attributed to declarations against penal interest. The quantity of overlapping statements also lends further support for their admission. 
Defendant met his burden of showing by the preponderance of the evidence that "[n]ew evidence has been discovered . . . which is of such character as to create a probability" of a verdict "more favorable to the defendant" (see CPL 440.10 [1] [g]). It is also noteworthy that the People's trial evidence was not overwhelming. No physical or testimonial evidence at trial placed defendant at the store at the time the victim disappeared, and no forensic evidence was found at defendant's home or in [the] van linking defendant to the victim. It is difficult to imagine these statements would not have "added a little more doubt to the jury's view of the evidence" such that there would have been enough uncertainty as to defendant's guilt to tip the scales in his favor. [Citations omitted throughout.]
It is difficult to imagine, as Judge Rivera wrote, that this new evidence would not have added uncertainty and tipped the scales. And difficult to imagine why a majority of the Judges would not err on the side of allowing a full post-conviction review of these two very possibly wrongful convictions. At the least, these cases were very close. Why err on the side that might well be perpetuating grievous injustice?

As for these two dissenting opinions--like those reviewed in the preceding post and like all thoughtful, ardently felt dissents--they gave voice to serious concerns about the majority opinions and  they demonstrated an independent vigilance that should always be welcomed--whether we happen to agree or disagree with the Court's decisions.

Monday, March 25, 2019

NYCOA: Criminal Appeals (Part 4b)--Recent Dissents That Should Have Been Majorities

John Marshall Harlan
Dissented in Plessy
A strong dissenting opinion is something to celebrate. (See e.g., discussion in Part 4a.)
But, of course, it is often reason for considerable disappointment that it was not the court's majority.
Oliver Wendell Holmes
"The Great Dissenter"

Indeed, sometimes there is cause for outright dismay, exasperation, and bewilderment that the majority failed to embrace the dissent's wisdom, fairness, candor, or other emphatic virtue.

A few recent dissenting opinions at New York's highest court fall into that category.

To be sure, such a phenomenon is neither unique to nor characteristic of the current Court of Appeals. It is not difficult to identify examples of the same among the decisions of virtually any court at virtually any time. Judges are fallible like the rest of us. Biased, obstinate, foolish, and for other reasons clearly wrong sometimes. Just like the rest of the human species.

But to place a positive note on this present discussion, let's focus on the wisdom, fairness, candor, and levelheaded common sense of dissents that demonstrate an admirable refusal to acquiesce in a lamentable decision by the majority. There have been several such dissents at the Court of Appeals recently. A few illustrative ones in criminal cases seem quite compelling.
(It turns out that, in two of my examples, the dissents argued in favor of the prosecution; in two others, in favor of the accused. That was not deliberate.)

In two of the cases, the majority reversed convictions based on a technical error of the trial judge. In neither case was there any indication of any prejudice to the defendant. Nor any indication that the defendant's lawyer thought so--or even thought there was an error. Nor any indication that the defendant might not be guilty. Nevertheless, the entirely reliable convictions were overturned by the application of a categorical rule for which the majority allowed no exception.
(I confess that I have long viewed the per se reversal rule in question to be absurd and in some applications outrageous.)

In two other cases, the majority upheld convictions. They did so despite strong indications that the defendants might actually be innocent. In each of those cases, the prosecution's case was weak. The evidence of guilt was questionable. And that evidence was contradicted by subsequent discoveries and other evidence that was not previously considered. Nevertheless, the Court's majority refused to allow bona fide challenges to the very possibly wrongful convictions.

Let's start with the first two cases and the corresponding dissenting opinions.

People v. Parker (2018) (DiFiore, C.J., dissenting)
People v. Morrison (2018) (Garcia, J., dissenting)
In both Parker and Morrisson, the deliberating juries sent notes to the trial judges seeking clarifications. Because the judges in those cases did not place some of the discussions with defense counsel about the contents of the notes on the record, the Court of Appeals majority reversed the ensuing convictions. According to the majority, these were merely applications of the Court's 1991 decision in People v. O'Rama.

The majority in both cases did so even though the trial records indicated that there were discussions about the notes. Even though the defense counsel never complained that the discussions were not placed on the record. (In legal terms, therefore, no objection to an error was "preserved.") Even though there were no claims that the defendants were harmed in any way by the trial judges' failure to place the discussions on the record. Even though neither these record failures nor anything else suggested that the defendants were wrongfully convicted.

No, the convictions were reversed in both cases because of the rule that the discussions of the substance of jury notes must be placed on the record. And more to the point, because of the majority's inflexible insistence that a trial judge's failure to do so unqualifiedly mandates the reversal of a conviction--whether or not there is even a suggestion that the defendant is harmed, and whether or not the defendant or counsel ever raised a concern about the matter.

In Parker, the Court, by a 4-3 vote, applied its categorical O'Rama rule to reverse the robbery convictions of two defendants. In her dissenting opinion, Chief Judge Janet DiFiore protested the majority's rigid per-se reversal rule as not being required by O'Rama, and as unnecessarily overturning convictions without regard for the realities of actual trial proceedings or for the facts of the specific case:
[T]his Court today...requires the reversal of a conviction — purportedly for an error that impacts the essential validity of the trial — based on the technical defect of failing to make an adequate record (CPL 470.05 [1]). The rule operates without regard to the specific facts of whether counsel actually received meaningful notice of the content of the jury note. Where, as here...the record demonstrates there was an off the record discussion of the jury notes[,] we have no reason to presume that a fundamental flaw in the trial process occurred.
The application of the majority's per se reversal rule on this record ignores the realities commonly attending the trial process and, ironically, finds error in what may only be the court's failure to record the absence of error. 
It should be noted that, counsel for appellants have not... represented to th[is] Court that trial counsel did not receive notice of the contents of [the] notes...Rather, the only argument advanced in our appeal relates to whether the record evidences such notice. This argument is in keeping with the majority's per se rule, which allows counsel who receives meaningful notice of the content of a jury note "to sit idly by while error is committed" and then argue that the record does not reflect such error.

Judge Garcia
In Morrison, decided the same day in another 4-3 vote, the Court again applied its unqualified O'Rama rule to overturn a rape conviction, again despite ambiguity in the record and despite no complaint by defense counsel at trial or throughout the first round of appeals. In his dissenting opinion, Judge Michael Garcia called for the abandonment of the per se, no-preservation-required O'Rama rule as contrary to basic common sense:
Today, the Court reverses defendant's conviction...based solely on an unpreserved claim. The majority forgives defendant's failure to preserve his challenge by relying on a record-making deficiency—the trial court declined to read a jury note into the record—even though defense counsel was aware of the note at issue and was informed that the trial court would not read the note aloud. The record also supplies reason to believe that defense counsel received the note and read its contents. 
Rather than simply asking for the contents of the note, or lodging any form of an objection, defendants in these circumstances are better off—under this Court's precedent—remaining silent and hoping for an acquittal; in the event of an unfavorable verdict, their claim will secure an automatic reversal on appeal...The sweeping rule of O'Rama should no longer bind us. 
In this case, for instance, defendant failed to object to the trial court's handling of [the] jury note...He also failed to raise his jury note claim in his first appeal to the Appellate Division. And apparently, he failed to raise it in his first application for leave to appeal to this Court. Defendant first raised his jury note claim in a coram nobis application eight years after his trial.
Once again, the majority prefers to wait for a legislative fix for a problem of the Court's own making [i.e., its expanded application of People v. O'Rama]. Until then, the hard lessons continue.
I personally could not agree more with the Chief Judge and Judge Garcia. The categorical, automatic reversal rule transforms a technical trial error into a fundamental flaw. As such, it not only operates to undo entirely reliable, justly secured convictions, but it does so without regard for whether defense counsel raised any objection or there was anything even worthy of an objection. As I acknowledged earlier, this rule--which the Court has extended far beyond the fact pattern in the O'Rama case itself--is one that I've long thought absurd and its application sometimes outrageous.

In the next post, we'll look at the other two cases I previewed above.

Friday, March 22, 2019

NYCOA: Criminal Appeals (Part 4a)--Recent Dissents That Should Have Been Majorities

There are famous dissents that were right when written and were ultimately vindicated in cherished landmarks. John Marshall Harlan's dissent, condemning "separate but equal" in Plessy v. Ferguson, became the law of the land in Brown v. Board of Education. Louis Brandeis's dissent in Olmstead v. United States, where he urged a less cramped understanding of search and seizure protections, was adopted by in Katz v. United States. Hugo Black's dissent in Betts v. Brady, arguing for the right to counsel in state prosecutions, became the majority in Gideon v. Wainright.

New York's highest court has had similar experience with dissenting opinions.

Perhaps the most widely celebrated in recent years is Judith Kaye's 2006 dissent in Hernandez v. Robles, where her call for a right to marry for same-sex couples was embraced shortly thereafter in both state statute and the Supreme Court's Obergefell v. Hodges decision.
Matthew Jasen's 1985 dissent in Tebbutt v. Virostek, urging the recognition of a mother's cause of action for the medically negligent killing of her unborn child, became the law of the state 19 years later in Broadnax v. Gonzalez.

George Danforth's dissenting condemnation of "separate but equal," in the Court of Appeals' 1883 King v. Gallagher decision, predated Harlan's Plessy dissent by 13 years and the Supreme Court's vindication by seven decades.




While perhaps not as dramatic as the foregoing, there are recent dissenting opinions at the Court of Appeals that seem clearly preferable to the positions taken by the majority. To be sure, these are my opinions. What is not simply my opinion, however, is the value of published dissents.

These open disagreements with the majority are valuable in identifying perceived weaknesses in the Court's decision. This, in turn, forces the majority either to address those concerns--thereby improving its own opinion--or to leave them unaddressed and, thereby, give rise to legitimate questions about the strength and candor of the decision.

Dissenting opinions also underscore the fact that the case is a close one. That the Court had to choose between competing arguments. That the judges had to exercise judgment--a sometimes radical proposition today. That the Court could legitimately have decided the case differently, but for reasons explained--though not always--the majority preferred one possible decision over another.

And finally, of course, dissenting opinions may simply be much more wise or fair or humane or for some other reason much better or legally correct. If so, they may well be recognized as such and ultimately embraced by a different majority or by the legislature.

As one who follows Courts, including decisional and voting patterns, I must confess another reason for welcoming dissenting opinions. Judicial scholars look to divided court decisions for insights into the policies, principles, preferences, philosophies--I could go on with this alliteration, but you get the point--of the court and its individual members. Patterns emerge from the choices made And the choices that have been made are evident when the options are spelled out in dueling majority and dissenting opinions. Beyond that, over a series of divided decisions--i.e., decisions with a dissent or a substantive separate concurrence--the choices that have been made confirm those patterns and underscore, in Cardozo's phrase, "stream[s] of tendency."

All of this, of course, is not only valuable to judicial scholars. It is also indispensable for lawyers who argue before the judges and who look for insights into their votes and decisions. Likewise for citizens who wish to be informed about the final arbiters of our law, about those who are dispensing justice. And, at least as vitally important, for the judges themselves who--as Cardozo (again) and Holmes and other jurists have recognized--are often unaware of their own leanings, deep-seated values and biases, and judicial philosophies.

With those prefatory considerations in mind, we will proceed in the next post to identify some recent dissenting opinions of the New York Court of Appeals. These not only help to identify choices made and patterns confirmed. But they also--at least in my view--are superior to the corresponding majority opinions (i.e., to use my own earlier line, "more wise or fair or humane or for some other reason much better or legally correct").