New York Court of Appeals: More Dissents in Kaye Court

In the closing years of Chief Judge Judith Kaye’s tenure on New York’s highest court, her colleagues have become increasingly divided. The number of decisions with dissent has risen dramatically. In fact, that number has more than doubled. In the last five years, the Court of Appeals has been divided in 161 cases ; there were only 69 such cases in the previous five-year period. Something has obviously changed the dynamics within the seven member tribunal.

There has been one conspicuous difference at the court during the five years in which dissents have risen so sharply. Throughout this period, from the ‘03 – ‘04 year to the current (and soon ending) ‘07 – ’08 term of the court, there have been a majority of judges who were appointed by former Republican Governor George Pataki. By the time this period had begun, Pataki appointees outnumbered judges selected by the previous Governor, Democrat Mario Cuomo. Pataki had appointed Susan Read a few months earlier to replace the retiring Cuomo-appointed Howard Levine. That gave Pataki a majority for the first time. Four members of the court were chosen by him; the remaining three by Cuomo. And Pataki’s 4 – 3 majority has continued to the present. (Actually, Pataki had a 5 – 2 majority for a very brief time. He replaced Cuomo-appointed George Bundy Smith with Eugene Pigott in September 2006. But in December of that year, one of his own appointees, Albert Rosenblatt, retired. The following month, Pataki’s successor, Democrat Eliot Spitzer, appointed Theodore Jones to fill the vacancy.)

But it was not just the fact of a Pataki majority that generated the doubling of dissents. It was who he appointed. His last three appointments to the court—two of whom were appointed during the recent five-year period, and one appointed immediately beforehand—have made the difference. Eugene Pigott was appointed nearly two years ago, at the start of the ‘06 – ‘07 term; Robert Smith four and a half years ago, in the middle of the ‘03 – ‘04 term; and Susan Read five and a half years ago, a few months prior to that term and to the five-year period in question. Each one of these judges has been authoring dissents at rates far higher than was the average for the court’s judges during the preceding five years. And each one of them has been authoring dissents at far higher rates than the two Cuomo appointees still on the court, Kaye and Carmen Ciparick.

Let’s do some comparing. The numbers are stark. Cuomo appointees Kaye and Ciparick authored 10 and 11 dissents, respectively, over the recent five-year period. By contrast, in his less than two years on the court thus far, Pigott, Pataki’s last appointee, has already authored 12. Pataki appointee Smith has authored 36 dissents in slightly less than five years. And Pataki appointee Read has authored 18 over the full five-year period.

Let’s look at the numbers from a different angle. Take Read’s rate of dissenting opinions, which is the lowest among Pigott, Smith and herself. If the court’s judges had averaged even her dissenting rate—i.e., each of the seven judges authored 18 dissents over five years—the total would be 126. That is in sharp contrast to the court’s 69 decisions with dissent during the previous five-year period (even when considering that some decisions generate more than one dissenting opinion).

The jump from 69 divided decisions to 161 is no trifle. It is a striking development. And it is one that cannot but have a significant impact on the decision-making process within the court, as well as on the decisions that are being produced. A future posting on the New York Court Watcher blog will look at some of the specifics of these increased dissents—e.g., who is dissenting in what kinds of cases and for what reasons.

Supreme Court: Right on the Gun Right

There’s so much of significance in District of Columbia v. Heller.

There's the Court’s decision about the meaning of the 2d Amendment: it’s a right of individuals. The Court’s more specific ruling: the D.C. gun law banning handguns violates that right. The Court’s division: another 5 – 4 vote. The make up of the 5 – 4 split: the conservatives on one side, the liberals on the other. The difference between the majority and dissent: Justice Anthony Kennedy’s vote. The Kennedy phenomenon: his vote has been the swing in the hottest-button cases like Heller, like Kennedy v. Louisiana [no death penalty for child rape; see the June 25 posting in New York Court Watcher], like Boumediene [habeas corpus for alien detainees; see the June 14 posting]. The remaining eight justices were simply true to their respective ideological bents: Roberts, Scalia, Thomas and Alito voted like political conservatives in each of the three cases, while Stevens, Souter, Breyer and Ginsburg voted like political liberals.

But perhaps the most fascinating aspect of Heller is how it confirms, yet again, the nonsense about liberal activism and conservative restraint. And the nonsense about interpretive methodology as the characteristic that distinguishes the justices.

Supreme Court: No Death Penalty for Child Rape

Today’s Supreme Court decision in Kennedy v. Louisiana will be warmly welcomed by those who unqualifiedly oppose the death penalty and vehemently condemned by those who enthusiastically support it. The rest of us, with ambivalence about the death penalty, are likely to be ambivalent about this decision as well. Indeed, the Court’s 5 – 4 split in Kennedy seems fairly to reflect the nation’s generally mixed feelings about capital punishment.

[Disclosure: I do not oppose the death penalty. It seems to me to be well deserved in some cases. I do, however, have serious reservations based on the racial and economic disparities in its imposition, as well as on the claims of its deterrent or other penological purpose(s). I would not have been upset if the Court in Kennedy had ruled the other way. But I am hardly outraged that the Court ruled the way it did.]

The gist of the majority opinion in Kennedy, authored by Justice Anthony Kennedy, is twofold. First, there is a national consensus that the death penalty should be restricted to crimes involving the taking of human life. Second, the death penalty is justified only for the most morally depraved crimes—intentional murder fits that characterization; child rape does not.

Let’s be honest. These propositions are questionable at best. Would anyone be persuaded except the already converted and the choir? As for the first proposition, is there really any such national consensus? Can Justice Kennedy, the majority, or anyone else really be confident that the American people or their representatives generally agree that the death penalty should only be for homicidal crimes? Nothing else? Not for any other crime regardless of how violent or inhumane? Not for the rape of a child, no matter how young the child and no matter how brutal the rape? In fact, isn’t the opposite much more likely? That the people and their representatives, if put to a vote, would generally favor the extreme penalty for some other crimes? At least for the most extreme child rapes? Does anyone really doubt that? And if the response is that constitutional decisions by the Supreme Court ought not to be driven by what the people or their representatives happen to think at any given time, then the majority ought not to be relying on it as a basis for its decision. Especially when the majority is very likely wrong about it.

As for the second proposition, that child rape is not as morally depraved as an intentional killing, what metric, whose metric is the majority using? And by whatever metric, can it really be said that child rape—regardless of how wretched or how physically, emotionally, and psychologically damaging or how often or how many victims—cannot equal the depravity of a killing? What notion, whose notion of depravity is that? Some contemporary notion, some current consensus again? But does Justice Kennedy, the majority or anyone else really believe that the American people or their representatives think that a child rape—no matter how aggravated the circumstances—is never as depraved as an intentional homicide? Never sufficiently depraved to justify the sentence reserved for the worst crimes? This proposition is as dubious as the first.

If the response to all this is that only a killing justifies being killed, then that is an entirely different argument. That is not the Kennedy majority’s argument about national consensus or about the level of moral depravity. Nor does that argument get us any closer to the question—i.e., why? Indeed, it’s not an answer at all. It’s the question! And if the underlying point is the ancient prescription of an eye-for-an-eye, then of course we must still confront the consequences of that equation. If death is the equal punishment for a killing, what is the equal punishment for child rape? For the most aggravated crimes of child rape? Not an easy question. And not one satisfactorily addressed in the Kennedy decision.

A final note. The single opinion for the four dissenters in Kennedy, authored by Justice Samuel Alito, criticized the majority opinion along lines similar to those presented here. As has been typical of Alito, the writing was measured, analytical, and devoid of the histrionics and other injudicious nonsense that too often marr dissents in such particularly difficult, divisive, and emotionally-charged cases. [See, for example, Justice Scalia’s dissenting opinion in Boumediene as well as numerous other cases. See also the discussion in “Not Exactly ‘Scalito’ (Part 2),” the June 22 posting on the New York Court Watcher blog.]

Not Exactly "Scalito" (Part 2)

Add Metropolitan Life v. Glenn, decided last week, to the list of this year’s cases in which Justices Alito and Scalia disagreed over the treatment of a vulnerable class. As discussed in the June 12 posting on the New York Court Watcher blog, in every such previous case Alito voted to sustain the complaint of inequitable treatment. Whether the claim involved age or race or interstate discrimination, Alito took a sympathetic position and supported remedial action. Scalia, on the other hand, found some reason in each one of those cases to reject the complaint and to deny redress. Connect the dots !

Now comes the Met Life decision. This one involved benefits for a disabled employee. Alito joined Justice Breyer’s majority opinion siding with the employee and requiring the insurance carrier to pay disability benefits. A host of factors, including the carrier’s conflict of interest in making the benefit eligibility determinations, led the majority to agree with the 6^th Circuit that the carrier had wrongfully determined that the employee was ineligible. Scalia disagreed. He argued in dissent that, despite the obvious conflict of interest, there was no proof how the carrier’s determination was actually affected. The Court should, thus, uphold the denial of benefits to the disabled employee. Another dot !

Notably, as is typically the case, it is not enough for Scalia to disagree. He apparently feels some need to be contemptuous of those with a different view. Hence, the majority “makes up a standard (if one can call it that);” in which all the circumstances are “chucked into a brown paper bag and shaken up to determine the answer;” the majority “opinion is painfully opaque;” and as for government as Amicus, the Solicitor General’s proposal is “an equally gobbledygook standard.” Maybe there’s a chuckle or two in such disparagement of colleagues and anyone else with opposing ideas. But is this the mark of a serious judge? Is this the mark of a judge who can or should be taken seriously? One who makes a serious attempt to engage and persuade? One who has any serious inclination or hope of exerting influence? Or one who is frustrated by the lack of his own influence and therefore simply plays to a fan club of the similarly minded? [More commentary on this shortly on the New York Court Watcher blog in The Boumediene Decision (Part 2): Scalia’s Dissent.] In any event, one is hard pressed to find anything similarly arrogant and sneering in an Alito writing. His tone, style and collegiality are of a much different order. Not exactly “Scalito ."

More on the Alito - Scalia contrast to come.

The Boumediene Decision: 5 to 4 ??

What's the most significant aspect of the Supreme Court's decision in Boumediene ? It was the fact that four justices voted against the Court's ruling. Four justices!! One would think that there should be a hefty majority (and even unanimity) to take constitutionally guaranteed safeguards seriously. And to take seriously the responsibility of the Court to enforce them.

But four justices--one short of a majority--actually voted to deny rights which Americans, our Constitution, and the Court have long believed to be fundamental. The right to know why you are being detained by the government. The right to know the charges against you. The right to know the basis for those charges. The right to challenge those charges. The right to a hearing. The right to legal representation--i.e., someone who knows the law, including these constitutional safeguards. The right to come before a judge, a neutral magistrate who would determine whether there actually is a basis for your detention and the charges against you. These are safeguards which this nation has long decided are essential. These are basic inalienable rights to which individuals are entitled.

Only when the government is unable to function as it does in peacetime, because of an invasion or insurrection or some other drastic condition akin to that; only when the courts are unable to function because of such conditions--these are the only exceptions to those constitutionally guaranteed rights. And the Supreme Court's highest, most critical role is to insure that those guarantees are honored and enforced. That's the role of all nine justices; not a bare 5 - 4 majority of them.

The Court's purpose is not to be a rubber stamp for the President or any other government official. The Court's purpose is not to blink when the President or some other official decides to suspend constitutional rights. The Court's purpose is not to give mere lip service to Constitutional rights whenever the Chief Executive or other official would prefer that it did just that. The Court's purpose is not to blindly accept the President's or some other official's unproven designation of individuals as terrorists or enemy combatants or some other equally evil categorization.

No, the Court's purpose is not to be a pawn of the head of state as the courts are in totalitarian states. We as a nation condemn such tyrannical governments and we are proud that we in this country are different. Yes, we stand up to our government when it disregards our Constitution. Our courts, and especially our highest court, do that. Yes, we are different, just as we were different--through our Supreme Court--in Boumediene. But we were different by a bare majority. Different despite the votes and protestations of FOUR justices in dissent.

There is reason to celebrate the Court's latest decision to reject the President's entirely un-American disregard of basic constitutional safeguards for the Guantanamo detainees. But there is also much reason to pause and consider that the current Supreme Court has apparently become so unsympathetic to fundamental constitutional protections, and so deferential to the President, that this seemingly easy decision in Boumediene was so deeply divided. That the decision rested on one swing vote separating the majority and the dissent. That four justices voted simply to give the President what he wanted. That four justices found no problem in the wholesale denial of constitutional rights based solely on the President's unchallenged classification of individuals. There is at least as much to be concerned about in Boumediene--about the ideological and jurisprudential composition of the current Court--as there is to celebrate.

Additional commentary on the Boumediene decision and what it says about the justices and the Court is forthcoming in posts on the New York Court Watcher blog.

Not Exactly "Scalito"

Justice Samuel Alito was dubbed "Scalito" because he was viewed as an ideological and jurisprudential (in addition to ethnic) soulmate of Justice Antonin Scalia. During his confirmation hearing, liberals dreaded and conservatives dreamed that it might be true. As it turns out, in his first three terms on the Court, Alito has not exactly been a Scalia clone. That is not to say that he has been a disappointment to conservatives. He certainly is not "W's" Souter. And he has hardly established himself as a member of the Court's liberal wing.

But, there are some tell-tale patterns emerging that have already shown Alito to be quite distinct from Scalia. Just this current term, soon coming to an end, Alito has clearly shown himself to be much less hostile to discrimination claims than Scalia typically is, and much less narrowly focused on some real or divined specific original intent.

In Gomez-Perez v. Potter, Federal Express v. Holowecki, CBOCS West Inc. v. Humphries, Dept. of Revenue of Ky. v. Davis, and Snyder v. Louisiana, Alito voted to sustain the various claims based on discrimination. In every one, Scalia voted the opposite. The claims involved race in CBOCS and Snyder, age in Gomez-Perez and Federal Express, and home-state preference in Dept. of Revenue. They arose in the context of employment in CBOCS, Gomez-Perez and Federal Express; in jury selection in a capital murder prosecution in Snyder; and in a state tax scheme treating out-of-state bonds disparately in Dept. of Revenue.

In every one of those cases - whether Alito authored the majority opinion (as in Gomez-Perez and Snyder) or joined another justice's majority or dissenting opinion - he was much more sympathetic to the complaints of inequity than was Scalia. The latter was typically dismissive of the complaints in each case, whether he was in the majority, dissent or a concurrence, and whether he authored his own opinion or joined one written by Justice Thomas. Equal treatment is at least one area of the law where Alito appears to have a much different perspective than Scalia: less rigid, less legalistic, less stingy, and more concerned with equity, basic fairness, and insuring that the laws accomplish their intended purpose of reducing injustice.

A comment on Alito's disagreements with Scalia's "original intent" arguments will appear in later installments on the New York Court Watcher blog. Indeed, much more commentary on the Supreme Court's past term, as well as on the three years of the Roberts Court, will appear in forthcoming posts.