Look at the Court's most deeply divided decisions. The 5 to 4's on hot button issues. The votes are just what would be expected. Forget about judicial activism and restraint. Forget about strict or loose construction. Forget about textualism, originalism, original intent, specific intent, general intent, neutral principles, overriding principles, deference to the democratic branches, deference to the states or local governments, deference to precedent, plain meaning, underlying purpose, etc., etc., etc. Instead, think about political ideology. Think about how each Justice might vote, not as a judge, but as a politician. Only a first year law student or a self-deluded believer that judges can be truly neutral or objective (and these are usually judges themselves), would miss the obvious. And it can't be more obvious than it was this year--again, as it has been in years past. Indeed, as it was in the beginning with President Washington's and President Adams' Federalist-stacked Courts.
Consider the hottest hot-button 5-4 decisions of the Court this past term. There was Boumediene, in which the Court decided that the alien detainees at Guantanamo are entitled to habeas corpus. The split vote, just as would be expected on purely political grounds, was liberals Stevens, Souter, Ginsburg, and Breyer on one side, and conservatives Roberts, Scalia, Thomas, and Alito on the other. The difference--another non-surprise--was moderate-conservative swing vote Kennedy. And the liberals prevailed here because Kennedy joined (and wrote the opinion for) them. (For more, see "The Boumediene Decision" posts, July 14 and June 10, on the New York Court Watcher.)
Then there was Kennedy v. Louisiana, where the Court ruled that the death penalty was not a permissible punishment for the rape of a child. Obviously, that was a liberal victory and, just as obviously, the liberals Stevens, Souter, Ginsburg, and Breyer voted for that result, and conservatives Roberts, Scalia, Thomas, and Alito voted against it. Kennedy again voted with the libs (and again authored their opinion), swinging the 5-4 decision in their favor. (For more, see "Supreme Court: No Death Penalty for Child Rape" posts, July 3 and June 24.)
On the other hand, there was Heller in which the Court ruled that the right to bear arms was an individual right and that the D.C. handgun ban was unconstitutional. That conservative victory was the result of the exact same political ideological split as in Boumediene and Kennedy--pure liberal vs. conservative--except that Kennedy-the-swing sided with the conservatives to give them the 5-4 victory this time. (For more see "Supreme Court: Right on the Gun Right," posted on June 27.)
The decision in Davis v. Federal Election Commission, invalidating the so-called "Millionaire's Amendment" to the McCain-Feiingold campaign law, was a favorite of political conservatives this past term. And, [You got it !] the line-up at the Court was the political conservatives Roberts, Scalia, Thomas, and Alito against the political liberals Stevens, Souter, Ginsburg, and Breyer-- with the conservatives prevailing in this one because [You got it again !] Kennedy voted with them in this case.
The conclusion to be drawn from this is startling. But only in the sense that some might find it surprising. For it is, in reality, startlingly obvious. At least it should be to anyone who follows the Supreme Court--or, for that matter, any high court (such as a state supreme court). These tribunals deal with difficult, fundamental issues about freedom versus authority, liberty versus order, the meaning of a free and just society and the relations between its people, and other similarly philosophical questions. Of course judges and justices are going to have very strong beliefs and feelings on these matters. Just like the rest of us. And these strong beliefs and feelings strongly affect their decisions. How could it be otherwise?
Holmes and Cardozo both acknowledged this unavoidable--and, indeed, essential--feature of judging. Other legal realists, on and off the bench, have maintained and demonstrated this as well. But it seems always to be a bit of a surprise. Even to those who already accept its truth. Especially when it is so clear. As it was this past term in the Supreme Court's 5 to 4 decisions.
Friday, July 25, 2008
Wednesday, July 23, 2008
New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too)
As was discussed in two previous posts on the New York Court Watcher blog (See, "New York Court of Appeals: More Dissents in Kaye Court," July 10 & June 28.), dissents have more than doubled at New York's highest court. From fall '03 to spring '08--the five year period just ended--there were 162 decisions with dissent. From fall '98 to spring '03, the immediately preceding five years, the number was 69--considerably less than half. The recent increase in dissenting opinions at the court coincides with former Governor Pataki's appointments of Judges Susan Read ( January 2003) and Robert Smith (January 2004). Indeed, as discussed in the earlier posts, Read's 28 dissenting opinions over the past five years, and Smith's 37 over the four and a half years in which he's been on the court, are much higher than the number of dissents authored by other judges.
Read's and Smith's numbers increase in significance when compared to those of the judges they replaced. Read's predecessor, Judge Howard Levine, authored 8 dissents in the five years prior to his retirement, from 1998 through 2002. During that same five year period, Smith's predecessor, Judge Richard Wesley, wrote only 2. That's Read's 28 vs. Levine's 8. Smith's 37 vs. Wesley's 2. A greater than three-fold and 18-fold increase, respectively!
Finally, since his appointment to the court by Pataki in September 2006, Judge Eugene Pigott has authored 12 dissents. Hence, in just two terms on the court (fall '06 to spring '08), he has already exceeded the 9 that Chief Judge Kaye wrote over the past five years. He has tied Judge Ciparick's 12 for those five years. And he has only one less than Judge Graffeo's 13 over that five year period.
It is clear that Judges Read, Smith, and Pigott feel much less tied to the tradition of consensus and unanimity or near-unanimity--a conspicuous preference for minimizing divisions--that had been a hallmark of the Kaye court for many years. The sharp rise in dissents beginning with Read and Smith has spelled an equally conspicuous ending of that tradition.
Read's and Smith's numbers increase in significance when compared to those of the judges they replaced. Read's predecessor, Judge Howard Levine, authored 8 dissents in the five years prior to his retirement, from 1998 through 2002. During that same five year period, Smith's predecessor, Judge Richard Wesley, wrote only 2. That's Read's 28 vs. Levine's 8. Smith's 37 vs. Wesley's 2. A greater than three-fold and 18-fold increase, respectively!
Finally, since his appointment to the court by Pataki in September 2006, Judge Eugene Pigott has authored 12 dissents. Hence, in just two terms on the court (fall '06 to spring '08), he has already exceeded the 9 that Chief Judge Kaye wrote over the past five years. He has tied Judge Ciparick's 12 for those five years. And he has only one less than Judge Graffeo's 13 over that five year period.
It is clear that Judges Read, Smith, and Pigott feel much less tied to the tradition of consensus and unanimity or near-unanimity--a conspicuous preference for minimizing divisions--that had been a hallmark of the Kaye court for many years. The sharp rise in dissents beginning with Read and Smith has spelled an equally conspicuous ending of that tradition.
Tuesday, July 22, 2008
New York Court of Appeals: Sharp Pro-Defendant Swing in Criminal Cases
A review of the year that just concluded (fall ’07 to spring ’08) shows another dramatic change taking place at New York July 10, 2008 .) Now it appears that the proportion of decisions favoring the rights of the accused has also escalated. Taking into account those criminal cases that divided the court this year—i.e., those eleven nonunanimous, particularly difficult, highly revealing decisions [again, see the July 10 post for a brief discussion of dissents]—shows that the court sided with the accused 64% of the time. That is a striking percentage when compared to the figure for previous years. That figure was 36% the year before. It was 35% the year before that. Indeed, over the entire five year period, fall ‘01 to spring ’06, the figure was 32% in favor of the accused. As was said regarding the rise in dissents, something’s happening!
[Figures for pro-defendant vs. pro-prosecution decisions in criminal cases since 1990 are depicted in the graphs included in my "Court of Appeals of
A quick look at what lies behind this past year’s figures begins to explain what is happening. The two remaining appointees of Democratic Governor Cuomo, Chief Judge Judith Kaye and Judge Carmen Ciparick, sided with the defendant in 73% and 64% of the divided cases, respectively. The newest member of the court, Democratic Governor Spitzer appointee Judge Theodore Jones, did so 82% of the time. The three of them currently constitute a strong block sympathetic to the rights of the accused on the seven member court.
Additionally, Judge Robert Smith, appointed by Republican Governor Pataki, voted for the defendant in 45% of the divided cases. His voting was significantly more favorable to the accused than the court as a whole has typically been for more than a decade—i.e., since the court turned considerably pro-prosecution following the public castigation of the court, early in the Pataki administration, for “coddling criminals.”
Two other Pataki appointees, Judges Victoria Graffeo and Susan Read, continued to have strong pro-prosecution records. They voted in favor of the accused in 27% and 18% of the divided cases, respectively. The final member of the court, Pataki appointee Judge Eugene Pigott, voted for the defendant 36% of the time—about the same as the court as a whole had been doing over the last several years.
In short, the divided criminal cases this past year show three judges with strongly pro-defendant voting records; one with a moderate record which, however, is pro-defendant compared to the court as a whole in recent years; and three with pro-prosecution records ranging from very strongly so to moderately so.
Future posts will further explore the court's pro-defendant shift, taking a closer look at the individual judges' records.
Sunday, July 13, 2008
The Boumediene Decision (Part 2: THAT Dissent)
There were two dissents. Chief Justice John Roberts wrote one. A civil, professional, temperate, appropriately judicial one. He explained his problems with the majority’s ruling that alien detainees at Guantanamo were entitled to habeas corpus. In his view, the Court had never before reached such a conclusion under analogous facts and, in any event, the review procedures in place under the Detainee Treatment Act of 2005 provided an adequate recourse for the detainees. One may not agree with Roberts’ dissent [and I don’t], but let’s be honest. Entirely respectable arguments; entirely respectably argued.
Then there’s Scalia’s opinion. Yeah, THAT dissent. A very different character than Roberts’. Beginning with his very first line. Never before, he protests, has the Court “confer[ed] a constitutional right to habeas corpus on alien enemies detained abroad.” [My emphasis.] Can he beg the questions more than he does? First, the very issue is whether, under the circumstances, the best reading of the Constitution is that it guarantees that right. If it does, then the majority would not exactly be “conferring” it. But Scalia WOULD be trying to violate it. Charging him with that, however, would be begging the very question at issue. Much like Scalia has little hesitation doing.
But much more egregious than that is his reference to “alien enemies.” Come on. Even the apparently—and not infrequently—hyperventilating Scalia knows that that’s the critical question at the heart of the case. It’s not the given. The question is about determining whether they really are enemies. Whether the government actually has any good reason for claiming so. Whether there really is any justification for calling them “enemy combatants” and then holding them indefinitely because of that official designation. But Scalia is evidently content to pass right over all that technical stuff. (BTW, six days after Boumediene was decided, the D.C. Circuit in Parhat v. Gates found absolutely no basis for the government’s labeling Parhat an “enemy combatant;” he had been detained at Guantanamo for six years. And the author of that court’s decision, Chief Judge David Sentelle, is an appointee of President Reagan!)
What is most egregious about Scalia’s opinion is the tirade that immediately follows his intro: his “description of the disastrous consequences” of the majority’s decision. “America is at war with radical Islamists.” [His words; my italics.] “The enemy [those with whom he’s sure all the Guantanamo detainees are allied] began by killing [us] abroad: 241...in Lebanon, 19…in Dhahran, 224…in Dar es Salaam and Nairobi, and 17 on the USS Cole.” “On September 11, 2001, the enemy [and, again, he’s certain every detainee is connected] brought the battle to American soil.” “Our Armed Forces are now in the field against the enemy [yes, he knows each detainee is a comrade], in Afghanistan and Iraq.” And the majority’s insistence that a detainee has a right to a habeas corpus hearing—merely to insure that there is some evidence that justifies the detention; that the government has some credible basis for treating the detained individual as an enemy—“will almost certainly cause more Americans to be killed.”
Killed as a result of a hearing? Certainly not if the hearing determines that there is reason for the detention and, thus, the detention continues. And what if the hearing shows that the government actually has no such reason? Does Scalia think that the person’s detention should continue anyway? So is Scalia’s point, why bother with a hearing! It’s just safer to continue detention, regardless of the evidence, information, facts—or lack thereof?
Indeed, this does seem to be Scalia’s very point. He proceeds with a parade of instances where released detainees “have returned to the battlefield.” Some “carrying on their atrocities.” One “murdered a United Nations engineer...another murdered an Afghan judge.” And it “was reported” that one “carried out a suicide bombing.” [I guess this is Scalia's Willie Horton argument.] But what does “their return to the kill,” as Scalia puts it, have to do with whether detainees should be afforded the most basic hearing? If it’s the “incredible difficulty of assessing” who should be detained, again Scalia's words, then is the answer to detain—and keep detained—anyone the government happens to suspect? Whether for good reason, bad reason, or no reason at all? And therefore, not even to bother determining the reason or whether there is one?
Scalia’s dissent is more fitting for AM radio than for the Supreme Court’s reports. His language and “argument” is more becoming a high decibel, low brow talk show host than a justice on our highest court.
[For earlier commentary on Boumediene, see the the June 14 posting on New York Court Watcher entitled "The Boumediene Decision: 5 to 4 ??"]
Then there’s Scalia’s opinion. Yeah, THAT dissent. A very different character than Roberts’. Beginning with his very first line. Never before, he protests, has the Court “confer[ed] a constitutional right to habeas corpus on alien enemies detained abroad.” [My emphasis.] Can he beg the questions more than he does? First, the very issue is whether, under the circumstances, the best reading of the Constitution is that it guarantees that right. If it does, then the majority would not exactly be “conferring” it. But Scalia WOULD be trying to violate it. Charging him with that, however, would be begging the very question at issue. Much like Scalia has little hesitation doing.
But much more egregious than that is his reference to “alien enemies.” Come on. Even the apparently—and not infrequently—hyperventilating Scalia knows that that’s the critical question at the heart of the case. It’s not the given. The question is about determining whether they really are enemies. Whether the government actually has any good reason for claiming so. Whether there really is any justification for calling them “enemy combatants” and then holding them indefinitely because of that official designation. But Scalia is evidently content to pass right over all that technical stuff. (BTW, six days after Boumediene was decided, the D.C. Circuit in Parhat v. Gates found absolutely no basis for the government’s labeling Parhat an “enemy combatant;” he had been detained at Guantanamo for six years. And the author of that court’s decision, Chief Judge David Sentelle, is an appointee of President Reagan!)
What is most egregious about Scalia’s opinion is the tirade that immediately follows his intro: his “description of the disastrous consequences” of the majority’s decision. “America is at war with radical Islamists.” [His words; my italics.] “The enemy [those with whom he’s sure all the Guantanamo detainees are allied] began by killing [us] abroad: 241...in Lebanon, 19…in Dhahran, 224…in Dar es Salaam and Nairobi, and 17 on the USS Cole.” “On September 11, 2001, the enemy [and, again, he’s certain every detainee is connected] brought the battle to American soil.” “Our Armed Forces are now in the field against the enemy [yes, he knows each detainee is a comrade], in Afghanistan and Iraq.” And the majority’s insistence that a detainee has a right to a habeas corpus hearing—merely to insure that there is some evidence that justifies the detention; that the government has some credible basis for treating the detained individual as an enemy—“will almost certainly cause more Americans to be killed.”
Killed as a result of a hearing? Certainly not if the hearing determines that there is reason for the detention and, thus, the detention continues. And what if the hearing shows that the government actually has no such reason? Does Scalia think that the person’s detention should continue anyway? So is Scalia’s point, why bother with a hearing! It’s just safer to continue detention, regardless of the evidence, information, facts—or lack thereof?
Indeed, this does seem to be Scalia’s very point. He proceeds with a parade of instances where released detainees “have returned to the battlefield.” Some “carrying on their atrocities.” One “murdered a United Nations engineer...another murdered an Afghan judge.” And it “was reported” that one “carried out a suicide bombing.” [I guess this is Scalia's Willie Horton argument.] But what does “their return to the kill,” as Scalia puts it, have to do with whether detainees should be afforded the most basic hearing? If it’s the “incredible difficulty of assessing” who should be detained, again Scalia's words, then is the answer to detain—and keep detained—anyone the government happens to suspect? Whether for good reason, bad reason, or no reason at all? And therefore, not even to bother determining the reason or whether there is one?
Scalia’s dissent is more fitting for AM radio than for the Supreme Court’s reports. His language and “argument” is more becoming a high decibel, low brow talk show host than a justice on our highest court.
[For earlier commentary on Boumediene, see the the June 14 posting on New York Court Watcher entitled "The Boumediene Decision: 5 to 4 ??"]
Thursday, July 10, 2008
New York Court of Appeals: More Dissents in Kaye Court (Part 2: Who? How Many? What?)
The Court of Appeals has begun its summer break. The 2007-'08 year has thus come to an end. As of July 1, all the remaining cases heard by the court this past spring have been decided. It is now possible to calculate the final numbers for those preliminary statistics on dissents that were given previously on the New York Court Watcher blog. (See, New York Court of Appeals: More Dissents in Kaye Court, posted on June 28.)
The total number of dissents for the five year period just ended--i.e., from 2003-'04 to 2007-'08--was 162. That contrasts quite sharply with the number of dissents for the immediately preceding five years--i.e., from 1998-'99 to 2002-'03--which, as stated in the earlier posting, was just 69. That's nearly a 100 dissent increase from one period to the next. That's more than double. To be more precise, the increase was 133%.
[Background: As stated in the June 28 post, the dramatic increase in dissents coincides with the making of a Pataki majority on the court. Shortly after his election as Governor in 1994, the Republican Pataki began a campaign of publicly rebuking the court for being too liberal, for coddling criminals, for caring more about criminals than victims, etc. etc. etc. He made it clear that he intended to appoint judges who were much more law-and-order oriented than those on the court at the time--not coincidentally, all of whom had been appointed by his election rival, the Democratic Governor Mario Cuomo. By the start of the 2003-'04 court year, in his third and final term as Governor, Pataki had appointed four of the seven judges. He had done so a few months earlier with the appointment of Susan Read. Several months later, when his first appointee, Richard Wesley, left the court for the federal 2d Circuit bench, Pataki maintained his majority on the New York court with the appointment of Robert Smith. So in the 2003-'04 court year, the first year of the most recent five year period, the Pataki judges outnumbered the others.
The Pataki majority persisted throughout the five years--it continues today. In fact, for a very brief period, Pataki had a 5-2 majority on the court. Pataki declined to reappoint Cuomo appointee George Bundy Smith when the latter's term came to an end in the fall of 2006. Instead, Pataki appointed Eugene Pigott. But within a few months, Pataki appointee Albert Rosenblatt retired, and his replacement fell to the newly elected Governor, Democrat Eliot Spitzer, who appointed Theodore Jones in January 2007. So at the start and at the end of the past five years, Republican Pataki has had a majority of four appointees on the court. (Then in 2003, Wesley, Victoria Graffeo, Rosenblatt, Read -- now in 2008, Graffeo, Read, Robert Smith, Pigott.) The remaining three judges were, and are, Democratic appointees. (Then, Chief Judge Judith Kaye, George Bundy Smith, Carmen Ciparick -- now, Kaye, Ciparick, Jones.)]
Now back to the dissent numbers!
The increase is in large measure attributable to two of Pataki's appointees: Robert Smith and Susan Read. Together, they alone wrote as many dissents these past five years--i.e., 65--as the entire Court of Appeals did in the previous five year period. Smith penned 37 dissents in his 4 1/2 years on the court. Read, 28 over the full five years. Those numbers compare, for example, to those of the remaining Cuomo appointees on the court: Kaye authored only 9 over the five year period; Ciparick, 12.
Of the two other Pataki appointees currently on the court, Victoria Graffeo wrote 13 dissents these past five years--just slightly more than the Cuomo appointees. But Eugene Pigott authored 12 in his slightly less than two years on the court. The remaining judge, Spitzer appointee Theodore Jones, has written 3 dissents since he joined the court 1 1/2 years ago.
Let's look a bit more closely at these dissenters and their dissents. Some fascinating goings on here--well, fascinating at least for court junkies. But important for everyone living or working in New York. We're all affected by what's happening at our high court.
There are three pairs of judges at the court whose dissents fall into clear patterns. Let's focus on that. First, there's Graffeo and Read. With these two, Pataki got what he said he wanted: staunchly pro-prosecution judges. Their overall voting patterns show it. (See for example, the graphs in my "Court of Appeals of New York State: The Judges, The Selection Process, Making the Current Court," Rockefeller Institute, October 15, 2007; available at http://ssrn.com/author=1031212.) Not surprisingly, their dissents show it as well. Of Graffeo's 13 dissents, she wrote 8 in criminal cases. (That number is 9 if a quasi criminal consumer fraud case is included.) In every one, she took the side of the prosecution. In every one, she disagreed with the majority which found some merit in a defendant's arguments. Likewise for Read. Of her 28 dissents, 8 were in criminal cases. All pro-prosecution.
Second, there's Kaye and Ciparick. They are the opposite of Graffeo-Read, if not as strongly so. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Of Kaye's 9 dissents, 2 were in criminal cases; both were pro-rights of the accused. Of Ciparick's 12 dissents, 5 were in criminal cases; in all, she sided with the defendant. Another significant pattern is the extent to which these two judges join each other. Kaye joined 10 of Ciparick's 12 dissents, including all 5 of Ciparick's pro-defendant dissents in criminal cases. Ciparick, in turn, joined 7 of Kaye's 9 dissents; that includes 1 of Kaye's 2 dissents in criminal cases. Looked at from a different angle, Kaye and Ciparick have been on different sides only 4 times in the past five years. They have been a very tight voting block of two.
Third, the final pair is Smith (Robert, not George Bundy) and Pigott. They are not a pair in the sense that Kaye and Ciparick are. They are not a voting duo. But neither are they a pair like Graffeo and Read. And that is what is so significant. These two Pataki appointees are NOT nearly as strictly pro-prosecution. To be sure, they are not liberals. They are not reliably sympathetic to the arguments of the accused in close cases. But neither can either of them be relied upon in the close cases to cast a law-and-order" vote. They are not the "Pataki judges" that Graffeo and Read are. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Specifically regarding dissents, of the 37 that Smith wrote, 10 of them were in criminal cases. In 5 of them--half of them--he sided with the defendant, taking issue with the majority of the court for inadequately protecting the rights of the accused. As for Pigott, in his almost two years at the court, 5 of his 12 dissents were written in criminal cases. Only 3 were pro-prosecution. That may seem a small number, but it is significant.
All these dissent numbers--not only Pigott's, but Smith's and Graffeo's and Read's and Kaye's and Ciparick's as well--represent instances where these judges felt strongly enough about a case to go public with a disagreement over a decision of their very collegial court. Dissents are not taken lightly. They are personal matters of principle. They represent only a small proportion of the disagreements that the judges actually have with each other. Most of these disagreements, perhaps aired internally when the judges conference, never see the light of day. There are many reasons. Workload, not sufficiently critical, feelings not sufficiently strong, conflict avoidance, etc., etc. But whatever the reason in any given case, what all this means is that the number of written dissents is but a fraction of the actual number of disagreements. And these written dissents, the few disagreements gone public, reflect much more than their numbers might suggest. They provide insights into other disagreements that are never made public. They afford us the strongest indications we have of the authors' strongest feelings, views, philosophies, tendencies, and ideological leanings--which, of course, come to play in many other cases.
Dissents are up--way up--at the New York Court of Appeals. That tells us a lot. About the court itself and about its members.
The total number of dissents for the five year period just ended--i.e., from 2003-'04 to 2007-'08--was 162. That contrasts quite sharply with the number of dissents for the immediately preceding five years--i.e., from 1998-'99 to 2002-'03--which, as stated in the earlier posting, was just 69. That's nearly a 100 dissent increase from one period to the next. That's more than double. To be more precise, the increase was 133%.
[Background: As stated in the June 28 post, the dramatic increase in dissents coincides with the making of a Pataki majority on the court. Shortly after his election as Governor in 1994, the Republican Pataki began a campaign of publicly rebuking the court for being too liberal, for coddling criminals, for caring more about criminals than victims, etc. etc. etc. He made it clear that he intended to appoint judges who were much more law-and-order oriented than those on the court at the time--not coincidentally, all of whom had been appointed by his election rival, the Democratic Governor Mario Cuomo. By the start of the 2003-'04 court year, in his third and final term as Governor, Pataki had appointed four of the seven judges. He had done so a few months earlier with the appointment of Susan Read. Several months later, when his first appointee, Richard Wesley, left the court for the federal 2d Circuit bench, Pataki maintained his majority on the New York court with the appointment of Robert Smith. So in the 2003-'04 court year, the first year of the most recent five year period, the Pataki judges outnumbered the others.
The Pataki majority persisted throughout the five years--it continues today. In fact, for a very brief period, Pataki had a 5-2 majority on the court. Pataki declined to reappoint Cuomo appointee George Bundy Smith when the latter's term came to an end in the fall of 2006. Instead, Pataki appointed Eugene Pigott. But within a few months, Pataki appointee Albert Rosenblatt retired, and his replacement fell to the newly elected Governor, Democrat Eliot Spitzer, who appointed Theodore Jones in January 2007. So at the start and at the end of the past five years, Republican Pataki has had a majority of four appointees on the court. (Then in 2003, Wesley, Victoria Graffeo, Rosenblatt, Read -- now in 2008, Graffeo, Read, Robert Smith, Pigott.) The remaining three judges were, and are, Democratic appointees. (Then, Chief Judge Judith Kaye, George Bundy Smith, Carmen Ciparick -- now, Kaye, Ciparick, Jones.)]
Now back to the dissent numbers!
The increase is in large measure attributable to two of Pataki's appointees: Robert Smith and Susan Read. Together, they alone wrote as many dissents these past five years--i.e., 65--as the entire Court of Appeals did in the previous five year period. Smith penned 37 dissents in his 4 1/2 years on the court. Read, 28 over the full five years. Those numbers compare, for example, to those of the remaining Cuomo appointees on the court: Kaye authored only 9 over the five year period; Ciparick, 12.
Of the two other Pataki appointees currently on the court, Victoria Graffeo wrote 13 dissents these past five years--just slightly more than the Cuomo appointees. But Eugene Pigott authored 12 in his slightly less than two years on the court. The remaining judge, Spitzer appointee Theodore Jones, has written 3 dissents since he joined the court 1 1/2 years ago.
Let's look a bit more closely at these dissenters and their dissents. Some fascinating goings on here--well, fascinating at least for court junkies. But important for everyone living or working in New York. We're all affected by what's happening at our high court.
There are three pairs of judges at the court whose dissents fall into clear patterns. Let's focus on that. First, there's Graffeo and Read. With these two, Pataki got what he said he wanted: staunchly pro-prosecution judges. Their overall voting patterns show it. (See for example, the graphs in my "Court of Appeals of New York State: The Judges, The Selection Process, Making the Current Court," Rockefeller Institute, October 15, 2007; available at http://ssrn.com/author=1031212.) Not surprisingly, their dissents show it as well. Of Graffeo's 13 dissents, she wrote 8 in criminal cases. (That number is 9 if a quasi criminal consumer fraud case is included.) In every one, she took the side of the prosecution. In every one, she disagreed with the majority which found some merit in a defendant's arguments. Likewise for Read. Of her 28 dissents, 8 were in criminal cases. All pro-prosecution.
Second, there's Kaye and Ciparick. They are the opposite of Graffeo-Read, if not as strongly so. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Of Kaye's 9 dissents, 2 were in criminal cases; both were pro-rights of the accused. Of Ciparick's 12 dissents, 5 were in criminal cases; in all, she sided with the defendant. Another significant pattern is the extent to which these two judges join each other. Kaye joined 10 of Ciparick's 12 dissents, including all 5 of Ciparick's pro-defendant dissents in criminal cases. Ciparick, in turn, joined 7 of Kaye's 9 dissents; that includes 1 of Kaye's 2 dissents in criminal cases. Looked at from a different angle, Kaye and Ciparick have been on different sides only 4 times in the past five years. They have been a very tight voting block of two.
Third, the final pair is Smith (Robert, not George Bundy) and Pigott. They are not a pair in the sense that Kaye and Ciparick are. They are not a voting duo. But neither are they a pair like Graffeo and Read. And that is what is so significant. These two Pataki appointees are NOT nearly as strictly pro-prosecution. To be sure, they are not liberals. They are not reliably sympathetic to the arguments of the accused in close cases. But neither can either of them be relied upon in the close cases to cast a law-and-order" vote. They are not the "Pataki judges" that Graffeo and Read are. (Again, see for example "Court of Appeals of New York State etc.," cited above.) Specifically regarding dissents, of the 37 that Smith wrote, 10 of them were in criminal cases. In 5 of them--half of them--he sided with the defendant, taking issue with the majority of the court for inadequately protecting the rights of the accused. As for Pigott, in his almost two years at the court, 5 of his 12 dissents were written in criminal cases. Only 3 were pro-prosecution. That may seem a small number, but it is significant.
All these dissent numbers--not only Pigott's, but Smith's and Graffeo's and Read's and Kaye's and Ciparick's as well--represent instances where these judges felt strongly enough about a case to go public with a disagreement over a decision of their very collegial court. Dissents are not taken lightly. They are personal matters of principle. They represent only a small proportion of the disagreements that the judges actually have with each other. Most of these disagreements, perhaps aired internally when the judges conference, never see the light of day. There are many reasons. Workload, not sufficiently critical, feelings not sufficiently strong, conflict avoidance, etc., etc. But whatever the reason in any given case, what all this means is that the number of written dissents is but a fraction of the actual number of disagreements. And these written dissents, the few disagreements gone public, reflect much more than their numbers might suggest. They provide insights into other disagreements that are never made public. They afford us the strongest indications we have of the authors' strongest feelings, views, philosophies, tendencies, and ideological leanings--which, of course, come to play in many other cases.
Dissents are up--way up--at the New York Court of Appeals. That tells us a lot. About the court itself and about its members.
Thursday, July 3, 2008
Supreme Court: No Death Penalty for Child Rape (Part 2: Oops, What About that Military Law?)
As reported this week in the New York Times, the Supreme Court majority misstated a fact that it had identified in support of its decision that the death penalty for child rape is unconstitutional. In Kennedy v. Louisiana, decided last week among the Court’s final rulings, the 5 – 4 majority argued that death was a cruel and unusual punishment for child rape, in large measure because of a perceived national consensus to limit such a penalty to homicidal crimes. Authored by Justice Anthony Kennedy, the opinion for the majority pointed to the fact that only six states—and not the federal government—had laws making child rape a capital crime. Unfortunately, as explained by Linda Greenhouse in two separate articles in the Times, the majority was wrong.
In fact, the federal government does have such a law. It was passed just two years ago. That law made child rape a capital crime in the military. Apparently, neither the nation’s legislature nor the nation’s chief executive had considered the death penalty to be an inappropriate punishment for child rape. So much for that strong, dispositive “national consensus” found by the majority. But in Kennedy, the prosecution, the defense, the federal Department of Justice—and ultimately, the Court as well—missed that fact. [Linda Greenhouse’s two articles in the Times can be found at: http://www.nytimes.com/2008/07/02/washington/02scotus.html?ex=1215748800&en=f9ad2c4e68f361d7&ei=5070&emc=eta1
Not surprisingly, there are calls to ask the Court to reconsider its decision. The thinking being that, but for this factual mistake, the Court might well have ruled the other way. The 5 – 4 ruling might have been the opposite. Justice Kennedy, the swing vote as well as the majority’s writer, might well have found this added information to be critical.
Well....those who are extremely upset by the majority’s ruling might convince themselves that this is so. They might turn hope into belief that there is a good chance the Court would actually reverse itself. But as one who himself disagrees with the decision in Kennedy, and who himself finds the majority’s opinion woefully unpersuasive (see “Supreme Court: No Death Penalty for Child Rape,” posted
The majority is hardly going to be receptive to a request to admit that its constitutional decision was wrong. Certainly not because of a single factual error. But more than that, any educated reading of the majority’s opinion could hardly deduce that its reason for striking the death penalty for child rape was really because there were only six jurisdictions, as opposed to seven, that had such laws. Or really because there is an actual consensus in the nation against such punishment for that crime. And the fact that such punishment was made available for the highly disciplined life of the armed forces is not exactly the best proof that such punishment is appropriate for civilians. More than that, the existence of such a law for the military can scarcely be translated into a national consensus contrary to that discerned by the majority—again, if “national consensus” really was the basis, or one of the bases, for the Court’s decision.
The truth, as any legal realist would readily understand, is simply that the majority of the justices do not believe that execution is a fitting punishment for child rape. And their reasons are almost certainly varied. It may be that some justices believe the death penalty itself to be barbaric or uncivilized or contrary to deeply held religious or moral beliefs. It may be that some justices simply distrust the criminal justice system to mete out such a punishment fairly; they may, therefore, want to restrict its application as much as possible. It may be that some justices subscribe to a just desert, eye-for-an-eye notion of justice, especially when it comes to taking a life. The possible reasons are many. It is very unlikely that the reasons are the same for all the justices. And those real reasons are not necessarily the ones to be emphasized—if revealed at all—in a legally argued decision.
The very same, of course, is no less true for the justices in dissent.
[That the real bases for judges’ decisions are typically unstated, and often even unconscious, are best discussed in the classic works by two of the finest and most thoughtful judges in American history: Holmes in “The Path of the Law” and Cardozo in “The Nature of the Judicial Process.”]
The point here is simply that the law passed for the military is extremely unlikely to tip the scales of the Court’s 5 – 4 decision the other way.
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