NY Court of Appeals: Dissents Up With CJ Lippman [and graphs to show!]

(For the last couple of months, the posts on the New York Court Watcher have been focused on Sonia Sotomayor. The nomination, record, and confirmation of Judge --now Justice--Sotomayor who President Obama chose to replace David Souter on the Supreme Court.
Meanwhile, New York's highest court finished its winter/spring session and went on summer break. There's plenty to examine. Not only regarding the winter/spring session, but the entire 2008-2009 year. For the next few posts, however, let's look at that winter/spring session. Specifically, let's look at developments since Jonathan Lippman was sworn in as Chief Judge on February 25.
Some interesting and important developments to be sure.)

Dissents, and the divided decisions that they create, have been on the increase. As discussed in a series of posts around this time last year, the number of dissents at the court had more than doubled in recent years. The doubling coincided with the appointments of Judges Susan Read and Robert Smith, in 2003 and 2004 respectively, and the resulting majority of Pataki appointees on the court. (Cites/links below.)

The dissents have not abated with the new Chief Judge. Instead, they have increased even more. Indeed, the number of dissents from March through July (which represent the cases since Lippman's first full session of oral arguments) was higher than the number for any other such period in any recent year. Substantially higher than the number for most years. And notably higher than the number for the last few years which, in turn, were considerably higher than for the preceding years. In short, a significant increase in dissents.

Here's a graph that shows it.
GRAPH 1
Dissents in the (early) Lippman Court
(click to enlarge)

As Graph 1 shows, the number of dissents in Lippman's first few months as Chief Judge is the highest for any like period depicted. The number began in the low to middle single digits in the first few years of the decade It then doubled that in the years immediately following the appointments of Judges Read and Smith (i.e., 2004 & 2005). And it jumped again this past year with Lippman at the helm.

Many questions arise. One of them is: Who's been doing the dissenting?

We've seen in the earlier posts that Judge Robert Smith was a frequent dissenter. Judge Susan Read, although not as often as Smith, had been dissenting more than others on the Court. Also, we noted that Judge Eugene Pigott seemed more than willing to break with the majority of his colleagues as soon as he joined the Court. No rookie effect for him. As for Chief Judge Judith Kaye, we saw that she dissented quite infrequently.

Let's see how the Judges of the Court did with the new Chief. And how he did as well.
GRAPH 2
Who's Dissenting in the (early) Lippman Court?
(click to enlarge)

Graph 2 depicts both the number of dissenting opinions each Judge wrote since Lippman became Chief, and the total number of dissents--written or joined--during that period.

Judge Smith leads his colleagues in written and total dissents. He's followed by Judge Pigott.

Interestingly, in contrast to what we've seen from Judge Read over the previous several years, she was not one of the leading dissenters in this early Lippman period. And speaking of Lippman, he was in dissent more frequently than any of his colleagues other than Smith and Pigott. (That's a big change for the Judge seated in the center. We'll return to that shortly.)

Let's reorganize the graph in descending order of dissenting frequency. (I.e., from highest to lowest--and that reminder is for my benefit as much as anyone else's.)
GRAPH 3
Dissenters in the (early) Lippman Court (descending order)
(click to enlarge)

Again, same data, just reorganized. Nothing new.

But this reordering of the Judges does make particularly vivid the wide spectrum of dissenting frequency. From Judge Smith to Judge Victoria Graffeo. An extraordinary difference. Perhaps reflecting an extraordinary difference in how they view the value of dissents--as much as how frequently they each actually agree with the majority's position. Is a disagreement with the majority worth a dissent? Is unanimity, acquiescence, and collegiality more important than expressing one's differing position? No doubt these two Judges have very different views on those questions.

And what about the new Chief and the old? As again depicted in Graph 3, Lippman has not been an infrequent dissenter in his first few months on the Court. How does his record compare with that of his predecessor?

The following graph adds Chief Judge Kaye's dissenting record for the same period last year (i.e., March through July 2008). Her record is depicted immediately adjacent to Lippman's for the contrast.
GRAPH 4
Dissenters in the (early) Lippman Court, with Kaye
(click to enlarge)

Could the contrast be more stark? Kaye, a firm believer in as much unanimity, as frequently, as possible, dissented much less frequently last year than Lippman did this year. In fact, Kaye dissented less last year than any Judge on the Court dissented this year. As Chief Judge, Kaye typically dissented infrequently. Last year was not out of the ordinary for her. (Her record was discussed along with those of her colleagues in those previous posts about dissents at the Court. The cites/links are given below.)

Soooo, dissents are up at the Court of Appeals. They're up from where they were already up! They're up from last year--Chief Judge Kaye's last year on the Court. And they're up for the new Chief Judge compared to what they were for his predecessor.

No honeymoon for Lippman? Or maybe he simply doesn't put as high a premium on unanimity as Kaye did.

In any event, the next posts will look a little more closely at the dissents and dissenters, what their individual and collective records may tell us, how those records compare with those from the past few years, and what the changes might signify.


(The doubling of dissents in recent years was explored on New York Court Watcher in New York Court of Appeals: More Dissents in Kaye Court (Part 3: Read and Smith; and Pigott Too), July 23, 2008; (Part 2: Who? How Many? What?), July 10, 2008; More Dissents in Kaye Court, June 28, 2008.)

Sotomayor--Let's Put the Cards on the Table (SS on the 2d Amendment)

An anachronistic 1886 decision of the Supreme Court. That's what Judge Sonia Sotomayor relied upon in deciding that the Second Amendment does not apply to the states. That is, that the Constitution does not protect the right to bear arms against any restrictions by state or local governments.

A cursory (2 paragraphs of reasoning), unenlightening, and unsigned opinion. That's how Sotomayor treated, and dismissed, the contention that the states must honor the constitutional right to bear arms. That is, how she treated, and dismissed, a legal claim this year that the Constitution protects the right to bear arms against violations by states and localities--not just by the federal government.

The 1886 decision of the Supreme Court is Presser v. Illinois. The 2009 decision of Sotomayor--and 2 other judges on the panel with her--is Maloney v. Cuomo.

One need not be a firearms aficionado or a 2d Amendment partisan to be troubled by the manner in which Sotomayor dealt with the right to bear arms. Not only in the Maloney case, but in her responses to questions about that case at the Senate Judiciary Committee hearings. Both in Maloney and at the hearings, she insisted that her position was based on settled law. That the 1886 Supreme Court decision in Presser is settled law. So too is a 2005 decision of the 2d Circuit (the federal appeals court on which she has been sitting).

Let's start with that 2005 decision. Bach v. Pataki (decided by a 3 judge panel that did not include Sotomayor) simply restated that 1886 Presser decision. Okay, to be fair, it also cited U.S. v. Cruikshank--an 1875 decision of the Supreme Court that was quoted in Presser for the same antiquated (i.e., long overruled) view of the Constitution.

The unexamined application of those 1886 and 1875 rulings in the 2005 decision by 3 of her colleagues should have been enough to raise questions for Sotomayor. But beyond that, there was this minor development in constitutional law a few years after that 2005 decision. A little Supreme Court case named District of Columbia v. Heller. That certainly should have given more than a little pause about whether her colleagues' 2005 decision--and those 1886 and 1875 decisions of the Supreme Court--represented "settled law."

Heller, of course, was the 2008 decision in which the Supreme Court ruled that the 2d Amendment's right to bear arms is an individual right. Not just one enjoyed by state governments to organize a militia. In reaching that conclusion, the Court went to lengths to explain that the right to bear arms existed even before the Constitution, that it was not even dependent on the 2d Amendment, and that the Founders and Framers viewed the right as a natural and fundamental one to which all free men were entitled. Beyond that, the Court strongly hinted that the 1886 and 1875 decisions had long since lost their validity. (The Heller decision was discussed at the time on the New York Court Watcher. See Supreme Court: Right on the Gun Right, June 27, 2008.)

The specific question about the continued validity of the 1886 and 1875 decisions was not directly before the Court in Heller. So the Court did not explicitly overrule--or reaffirm--them. But, it is impossible to read Heller without seeing that the Court was explicitly raising doubts about those old decisions. That the Court's actual holding in Heller and its reasoning to support that holding cast serious doubts about those old decisions. And that those old decisions were now clearly unsettled law--if that was not already clear.

And yet, in her Maloney decision--decided the year after Heller--and at the hearings, Sotomayor persisted in claiming that those old decisions and her colleagues' 2005 decision relying on them was settled law. That was why her Maloney decision was cursory and unsigned. State governments were free to ignore the constitutional right to bear arms. The law was clear. Despite Heller. And despite what the Supreme Court alluded to in Heller--i.e., what has happened in constitutional law to undermine those old decisions.

Indeed, all that has happened in constitutional law. Even without the 2008 Heller decision, the developments in constitutional law over the past century would alert a 1st year law student--would alert even a college student taking an undergraduate course in constitutional law--that those 1886 and 1875 decisions were extremely questionable at best. Certainly no longer to be considered "settled."

Those old decisions were decided at a time when the Supreme Court was still saying that the rights in the Bill of Rights did not apply to the states. That the Constitution did not protect those rights against violations by state governments. To be sure, the Bill of Rights itself was intended to apply only to the federal government. But with the ratification of the 14th Amendment in 1868, the Constitution explicitly prohibited the states from unduly infringing upon "privileges," "immunities," and "liberty." Unfortunately, in decisions such as the 1886 Presser and 1875 Cruikhank, the Supreme Court largely nullified the 14th Amendment.

According to the Court back then, the 14th Amendment really didn't change anything. Deferring to state sovereignty, the Court repeatedly held that the amendment's explicit guarantees of "privileges" and "immunities" and "liberty"--as well as the "due process"--still didn't protect the rights in the Bill of Rights against state governments. One dissenting Justice in the infamous 5 to 4 decision in the 1873 Slaughterhouse Cases put it bluntly. The Supreme Court had turned the 14th Amendment into a "vile and idle enactment."

In case after case at that time, a majority of the Court held that the guarantees in the 14th Amendment did virtually nothing to restrict the states. Just a few examples. In Maxwell v. Dow (1900), the Court held that the states didn't have to provide jury trials in criminal prosecutions. In Twining v. New Jersey (1908), states were not bound by the right against compelled self-incrimination. In Minor v. Happersett (1874), states were free to decide who could vote and could deny that right to women [notwithstanding the Amendment's "equal protection" guarantee]. And in Plessy v. Ferguson (1896), states were free to discriminate against African-Americans and keep them away from Whites.

Yes, those were the kinds of decisions and that was the climate surrounding the 1886 and 1875 decisions that Sotomayor claims is still settled law. As would be expected for decisions at that time, the Supreme Court held in those cases, Presser and Cruikshank, that the right to bear arms wasn't protected against the states. Well, the Court had been holding that virtually no rights were protected against the states. And it was making absolutely clear that the 14th Amendment didn't do a thing to make the Bill of Rights--or the rights expressed in the Bill of Rights--applicable against the states.

All that, as we all know, has changed.

The Supreme Court eventually took a different view. The 14th Amendment's express protection against the states was recognized as having nationalized or "absorbed" or "incorporated" most of the Bill of Rights. Free speech, press, and religion; right to counsel, to a jury trial, and against compelled self-incrimination; and other rights deemed to be "fundamental" to the American concept of liberty have all been made applicable to the states--and, thus, constitutionally binding upon them.

Beginning in 1937 with the seminal decision in Palko v. Connecticut, written by Justice Benjamin Cardozo (Sotomayor's claimed judicial hero), the Supreme Court has interpreted "liberty" in the 14th Amendment as including virtually every right mentioned in the Bill of Rights. "Implicit in the concept of ordered liberty." Principles "rooted in the traditions and conscience of our people." "Fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." That is how Cardozo construed the "liberty" guaranteed in the 14th Amendment. And that is how the Supreme Court has construed and applied it ever since.

Cardozo's interpretation of "liberty" in the 14th Amendment has prevailed. Indeed, the Supreme Court has since given it even wider application than Cardozo did. And that is the law today. That is what's "settled." That is what the Supreme Court will apply when it decides whether the right to bear arms is protected against the states.

The Court will not be disinterring the jurisprudence of more than a century ago. Not the jurisprudence which denied that the states had any constitutional obligation to honor basic American rights. Not the decisions of that era. Not decisions such as Presser and Cruikshank which Sotomayor relied upon earlier this year, in Maloney, to dismiss the notion that the right to bear arms applied to the states. No, not those decisions of a bygone constitutional era--despite Sotomayor's claims at the hearings that they represent settled law.

Does she really believe that? Or not? And what would be worse?

[Disclosure: Although I became accustomed to firearms in the Army, I am not a fan, let alone an enthusiast. In fact, I strongly support gun regulations.
But I don't believe that the 2d Amendment can honestly be ignored or disparaged. It was quite clearly deemed by the Founders and Framers to be critical to a free society. And when the case arises for the Supreme Court to apply its fundamental rights jurisprudence to the the right to bear arms (and there are cases in the pipeline), it is hard to imagine any decision other than that the right to bear arms is fundamental and is protected by the 14th Amendment against violations by the states.
I may turn out to be mistaken. But at the very least, there are very serious questions about the continued validity of those 1886 and 1875 decisions.
That is why I find Sotomayor's dismissive decision in Maloney and her explanation at the hearings to be so deplorable. Either she really does not understand the problems with those old cases, or she does and simply denied it. Again, what's worse?]
(Previous posts on the New York Court Watcher concerning Judge Sotomayor's performance at the hearings include: Sotomayor--Let's Put the Cards on the Table (Judiciary Committee Appoves the Dreadful Success), July 30, 2009: (More on the Dreadful Success: SS on Judging), July 20, 2009; (A Dreadful Success at the Hearings), July 19, 2009.

Posts on her record as an appeals court judge include:(See Sotomayor--Let's Put the Cards on the Table (The Good, The Bad, & The Ugly [Opinions]), June 23, 2009; (Some Common Threads in Her Opinions), June 5, 2009; (Versus Her Colleagues), June 3, 2009; (Ideological Patterns in Her Opinions), June 2, 2009; (First, Some Prefatory Comments), May 28, 2009.)