Court of Appeals: Centrists Smith & Pigott--Independent & Contrarian, with Each Other & the Majority

Robert S. Smith and Eugene F. Pigott. As discussed in a previous post, they fall in the center of the Court's ideological spectrum in criminal cases. But that has not translated into those two being the Court's swing votes. Instead of being in the majority the most frequently among their colleagues, they in fact have been in the majority less than others on the Court. That makes them unlike centrist swing-vote Justices Anthony Kennedy and now-retired Sandra Day O'Connor who have typically determined the majority in Supreme Court decisions. (See Court of Appeals: What Lippman Inherited (Part 3 - Criminal Law Voting: Who's been in the Majority?), Mar. 20, 2009.)

So let's take another look at that Smith and Pigott voting phenomenon. If they are the Court's centrists, but are not the swing votes, not the Judges most frequently in the majority, do they at least vote together very often? When they do vote together, does that asuure or virtually assure a majority? Overall, how frequently are they together in the majority? And how do they compare with other ideological pairings on the Court?

Here in short visual form is the answer to all those questions:

GRAPH 1
Smith & Pigott
Comparative Alignment w/ Each Other & As a Centrist Pair

(click to enlarge)

As depicted in the graph, Smith and Pigott have actually been voting together less frequently than have the liberal (more pro-defendant) pair of Kaye and Ciparick, or the conservative (more pro-prosecution) pair of Graffeo and Read. Curiously, as the Court's ideological centrists, not only have they been voting in the majority less frequently than their more liberal and their more conservative colleagues, but they have also been voting less frequently with each other than the other pairings have. So they are independent and contrarian (to borrow a term used by Smith himself) not only with Court majorities, but between themselves as well.

[The data reflected in the graph and forming the basis for this discussion are all the criminal cases in which the Court's decision was divided--at least one Judge dissented--and in which both Smith and Pigott participated. They constitute the 26 non-unanimous criminal cases since Pigott joined the Court in September 2006.]

So, liberals Kaye and Ciparick (at 88%) and conservatives Graffeo and Read (73%) voted together at much higher rates than did Smith and Pigott (46%). (Again, this is in the divided criminal cases over the 2 1/2 Court terms/years since Pigott joined the Court.) Moreover, of the cases where Kaye and Ciparick did vote together, a much higher proportion were majority votes than was so for Smith and Pigott. Likewise, for the cases where Graffeo and Read voted together, a higher proportion were majority than was so for the Court's centrists. More specifically, as the graph indicates, of those cases where Kaye and Ciparick voted together (remember, that's 88% of the cases), they were doing so in the majority 91% of the time. For Graffeo and Read, of the cases in which they voted together (remember, 73%), they did so in the majority 71% of the time. As for Smith and Pigott, however, in the cases they voted together (remember, 46%), just a little more than half of those--58%--were in the majority.

The last item reflected on the graph--which really flows from the foregoing--only underscores further that, although they comprise the Court's ideological middle, Smith and Pigott are hardly the Judges who determine the Court's majority. When Kaye and Ciparick have voted together, they have helped to form a majority in fully 81% of all these divided criminal cases. When Graffeo and Read have voted together, they've had the majority 58% of the time. That figure may be much lower than Kaye and Ciparick's rate, but it is still more than half the cases--and more than double the rate for Smith and Pigott. When those two have voted together, they managed a majority in only 27% of the cases.

So.... It all adds up to what we've now repeated several times about Smith and Pigott. Centrists, yes. Majoritarians, no.

Now, before closing, let's be absolutely clear about something. It's very important to avoid any misconceptions about what the data shows and about what we (yes, I) might be suggesting. None of the foregoing--at least not in my view--suggests that Judge Smith or Pigott have been right about the law less frequently than other members of the Court. Let's state it another way. There is--again, in my view--no, none, zero correlation between the frequency of being in the majority and the frequency of being right or wise or prescient or anything else good--except being on the side that won. And even regarding the latter, the side that won only at that time. But not necessarily in the long run.

Indeed, there are more than a few decisions of the Court in which it seems to me that the Judges outside the majority had the better view. Actually, plenty such decisions. So if Smith and Pigott are in the majority in fewer of these tough, divided cases more than their colleagues, that to me says not a wit about whether they were less frequently right or wrong, wise or foolish.

There were certainly other Judges in the recent past who were less frequently in the majority (i.e., more frequently voting against the majority), and they seemed clearly (to me) to have had the much better view of the law than the majority. In fact, most of the time. Judges George Bundy Smith and Matthew Jasen are 2 that come to mind. (A liberal and a conservative, you might note. This is not ideologically based.) Both seemed to get it right case after case after case, despite being on the wrong side of the majority. Even Judges who were part of the majority more frequently, like Judith Kaye and Stewart Hancock. When either of them opposed the winning side, there was very good reason to doubt the Court's decision. And by analogy, on the losing side on the Supreme Court, need I say more than Holmes and Brandeis.

Enough for now. Smith and Pigott. Two fascinating Judges with fascinating dynamics on the Court.

Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?

Today, the Court of Appeals heard arguments in People v. Weaver about the constitutionality of a police investigation.

The defendant was found guilty of burglary and attempted grand larceny after a trial. The Appellate Division, New York's intermediate appeals court, then affirmed the convictions. The central question before the Court of Appeals has nothing to do with whether this particular defendant is guilty. He is. Case closed.

The question is far more important than that. It's a question that applies to everyone in New York--innocent or guilty. And because the Court's decision will set a precedent that is likely to influence the high courts in other states, the question truly has national implications.

So what happened in the investigation? The police attached a tracking device to the defendant's car. They then used that device to monitor his whereabouts. The catch? The police did this without a warrant. Those are the relevant facts. The only ones relevant to the question before the Court.

Now first, what do those facts mean? Not my opinion or anyone else's. Just the facts. What the facts mean is that neither the police nor anyone else obtained a warrant--i.e., authorization to attach the tracking device. Nobody showed that there was probable cause--i.e., reason to believe that the defendant had committed a crime. Nobody even showed that there was reasonable suspicion. Nobody showed that there was some emergency requiring quick action and no time to get a warrant. Nobody showed any justification at all. And that's what the question is about. So....

Second, the question is whether the government needs any justification to attach a tracking device to your car. Yes, YOUR car! But didn't the government have a reason to attach the device in this case to the defendant's car? Well THAT'S the very point! The prosecution's position is that the government doesn't need any justification to attach a tracking device to someone's car. No justification at all. No warrant. No probable cause. No reasonable suspicion. No emergency. Nothing.

Well how can that be? It can be because the prosecution doesn't want the Court of Appeals to throw out the evidence that the police obtained from using the tracking device. So the prosecution is claiming that the police didn't do anything wrong. That the police didn't conduct an unreasonable search (which both the federal and state constitutions forbid). But how so, if there was no justification for the search? Oh, well, that's because it wasn't a search at all? Nope. You see, putting a tracking device on someone's car and electronically monitoring their whereabouts is not a search at all. Not according to the prosecution.

So even if what the police did was entirely unreasonable--i.e., without any justification--that's no problem. Because no matter how unreasonable, how utterly without justification, it wasn't a search anyway.

"What?," you may say. "How can THAT be?"

Well, because of some United States Supreme Court "law and order" decisions over the past few decades. Indeed, in a whole series of decisions that can only be described as result-oriented (i.e., a majority of the Justices simply did not want to throw out the evidence), that Court insisted that various police searches were not "searches." OK, those decisions can also, quite fairly I think, be called preposterous. Not because the Court should have thrown out the evidence. (I, for one, do think that's debatable.) But because the police activities in those cases were certainly searches. Readily recognizable by sentient human beings as such. Here are a few examples:

The government flies a helicopter over your backyard and hovers above, looking to see what you are doing or whatever else might be found. Sorry, not a search. (I'm not kidding!) So no warrant needed, no probable cause needed, no reasonable suspicion needed, no reason or justification needed at all. The government can simply do it if it wants. Period.
Florida v. Riley (1989).

The government electronically monitors and records a private conversation you are having in your home. It does so by placing a wire on your friend or neighbor or business partner who's in trouble and so is cooperating with the police. Sorry again, not a search. So no warrant needed, no probable cause needed, etc., etc., etc. And get this. The Supreme Court actually supported its decision by holding that it's not reasonable for anyone to think that his or her private conversations are private. Everyone knows that the friends or neighbors or business partners we speak to (foolishly thinking it's in private) can just run and tell others, including the police. So the government's electronically monitoring private conversations is not a search. The government can simply do it if it wants. That's right. That's what the Justices ruled. (Hey, I didn't appoint them--and wouldn't have.)
U.S. v. White (1971).

Government agents (whether police or other agents or officials) ignore the "No Trespassing" signs you've posted around your property. They even leap over the fence you've erected. They stay far enough from your house so they they can't see inside. But otherwise they inspect every inch of your property looking for whatever they might find. You got it. A majority of the Justices declared that's not a search. And you know what that means. No warrant needed, etc., etc., etc. Pretty "repugnant," right? That's just what the Court of Appeals majority called it in People v. Scott (1992). But, again, the majority of the Supreme Court ruled that such a "not-a-search" is perfectly fine even when the police have no reason for it.
Oliver v. U.S. (1984).

You put your garbage out at the end of your driveway, go back in for a last sip of coffee, and when you go back out to leave for work what do you see? There are police officers (or other government agents) opening your garbage bags, rummaging through them, reading all your discarded bills and mail and other papers and sifting through other items and even leftovers. In response to your inquiry you are told: "No warrant, no reason, don't need one." By this point, dear reader, you know that the Supreme Court agrees. It's not a search. So even if totally without justification, it's OK.
California v. Greenwood (1988).

We could go on and on. But just 1 more.

You're taking a walk, or you're stopped at a red light. Here comes the K-9 unit. The police (or other government agents) bring the dogs around, following and sniffing you while you walk down the sidewalk, or sniffing your car the whole time your stopped at the prolonged signal. You got it again. Not a search. And you know what that means. Forget about a warrant or probable cause or reasonable suspicion or any reason at all. Not needed. The Court of Appeals did take a very different view when it addressed the same issue in People v. Dunn (1990). But according to a majority of the Supreme Court, no justification is needed for the canine sniffing because it just isn't a search.
U.S. v. Place (1983).

So now let's return to the Weaver case argued today before the Court of Appeals. As you might expect, the Supreme Court would agree with the prosecution. Putting a tracking device on someone's car and electronically monitoring that person's movements and whereabouts is not a search. That's what a majority of the Justices held in U.S. v. Knotts (1983). So the question in the Weaver case is whether the Court of Appeals will follow the Supreme Court. Or will it take an independent position, and render a different decision under the search and seizure protections of the state constitution.

That's what the Oregon Supreme Court did when it confronted this issue (State v. Campbell [1988]). So too did the Washington Supreme Court (State v. Jackson [2003]). Indeed, the Court of Appeals has taken such independent positions many times in the past. It did so in the Scott and Dunn cases already mentioned. And it has done so throughout its history. That's one of the very reasons the Court of Appeals has often in its history been a viewed as a--if not the--great, influential, leading court in the nation.

The Court of Appeals certainly took some independent positions while Judith Kaye was Chief Judge. In freedom of the press, search and seizure, the right to counsel, education, and other areas. These were among the highlights of her tenure and these are what the Kaye Court will be remembered and admired for in the long run. The same for the Court under her predecessors. Under Sol Wachtler, Lawrence Cooke, Charles Breitel, and Stanley Fuld--just to name her most recent predecessors--the Court was recognized across the country as a leader among state courts in deciding cases independent of the Supreme Court's back and forth on protecting constitutional rights and liberties.

The Lippman Court can take an independent stand in Weaver or it can follow like a lower court. It can rule as the final arbiter of the state constitution and the primary guardian of New York's fundamental law. Or it can decide the case as if the state constitution and the Court's own judgements are mere carbon copies of the Supreme Court's questionable views of the federal Constitution. It can render a decision that is honest and wise, that is protective of both liberty and order, and is worthy of the Court of Appeals' history and tradition. Or it can refuse to see the nonsense in the Supreme Court's repeated insistence that searches are not searches, and that such intrusions on individual privacy require no justification whatsoever in a constitutionally governed free society.

Exactly what should be required before the government is allowed to place an electronic device on someone's car and keep track of where he goes may not be an easy question. Whether to exclude perfectly reliable evidence that proves that someone is guilty of serious crimes may be even more difficult. Whether electronic monitoring would be unreasonable under particular circumstances and whether suppression of the resulting evidence would be a reasonable redress are both judgment calls about which intelligent, knowledgeable people in good faith can disagree.

But one issue is easier. Yes, a search is a search. Rummaging through someone's garbage is a search. Entering and looking around somebody's property, even if beyond the "peeping distance," is a search. Inspecting the insides of one's clothing or automobile with a sniffing dog is a search. Studying someone's backyard while hovering above in some aircraft is a search. Electronically intercepting a private conversation is a search. And scrutinizing someone's movements with an electronic monitoring device surreptitiously attached to his automobile is a search.

The Supreme Court's conspicuously agenda-driven way of dealing with all of those is preposterous at best--more likely disingenuous or deliberately self-deluding. I.e., a search is not a search.

The test for the Court of Appeals in Weaver is whether it will be cowed by the Supreme Court. Whether it will fail--willingly or willfully--to recognize and acknowledge how absurd the Supreme Court's decisions in this area of constitutional law are. And whether the Court of Appeals has the good sense and honesty to say that a search is a search, and has the courage and wisdom to face the real constitutional issues which will then be laid bare. I.e., what would justify the tracking device? and in the absence of that justification, should the evidence be excluded? This is the first big test for the Lippman-led Court.

Court of Appeals: What Lippman Inherited (Part 3 - Criminal Law Voting: Who's been in the Majority?)

GRAPH 1
The Court Before Lippman
Criminal Law Voting: Frequency in Majority

(click to enlarge)

Now-retired Chief Judge Judith Kaye was part of the Court's majority in the non-unanimous criminal decisions more often than any of her colleagues in recent years. A review of all the criminal law cases (41) over the past 3 years in which at least one Judge dissented (or separately concurred on the basis of a substantial disagreement with the majority) reveals that Kaye voted in the majority most frequently, and Judge Eugene Pigott the least. And the margin was significant. Almost 2 to 1.

Between Kaye and Pigott, the remaining 5 Judges voted at different--if not so drastically different--rates in the majority. Here's a look at the full spectrum in order of frequency.

GRAPH 2
The Court Before Lippman
Criminal Law Voting: Frequency in Majority (Descending Order)
(click to enlarge)

As GRAPH 2 illustrates, 4 Judges--Kaye, Susan Read, Carmen Ciparick, and Victoria Graffeo--voted in the majority at similarly high rates. At the other side of the spectrum, Pigott and Judge Robert Smith were part of the Court's majority the least often. Judge Theodore Jones' rate of majority voting falls between the two groups.

The Judges' rates of frequency in the majority take on added significance when considered in light of the the Court's ideological spectrum. Indeed, it all becomes particularly curious.

As discussed and illustrated in the previous 2 posts in this series in the New York Court Watcher, there is a wide ideological spectrum in the Judges' pro-prosecution and pro-defendant voting in criminal cases. Additionally, there are 3 ideological pairings among the 6 Judges that remain on the Court (i.e., now Lippman's colleagues). Relative to each other, these 3 pairings are unmistakably liberal (pro-defendant), conservative (pro-prosecution), and centrist (midway between the other 2). (See Court of Appeals: What Lippman Inherited (Part 2 - Criminal Law Voting Spectrum), March 19, 2009; (Part 1-Criminal Law Voting), March 8, 2009.)

Let's combine the data on majority voting and the ideological pairings in a single graph. Here it is.

GRAPH 3
Lippman's New Colleagues
Criminal Law Voting: Frequency in Majority (By Ideological pairings)
(click to enlarge)

What the GRAPH 3 vividly shows is that the centrist pairing of Smith and Pigott has the lowest rates of voting with the majority. Now that is fascinating.

Think of the centrists on the United States Supreme Court. Justices Anthony Kennedy and, before him, Sandra Day O'Connor. Those centrists have had the highest rates of alignment with that Court's majority. Isn't that just what would be expected? Being part of neither the more liberal nor more conservative wing of the Supreme Court, Kennedy and O'Connor have been "swing" votes. Typically, they've made majorities. Consequently, they've overwhelmingly been part of their Court's majorities. (See, e.g., Supreme Court: Justices In The Majority (Part 2--And Compared to In Dissent), Dec. 18, 2008; Supreme Court: Justices In The Majority, Dec. 8, 2008.)

By contrast, Smith and Pigott--though like Kennedy and O'Connor in having voting records that place them with neither wing of their court's ideological spectrum--unlike the Supreme Court's centrists, do not have the highest rates of majority voting. Instead, they have the lowest! Stated otherwise, they are out of the majority more than the rest of their colleagues.

So, the Court of Appeals "centrists," Smith and Pigott, are closer ideologicaly to the Court's liberals and conservatives than the liberals and conservatives are to each other. BUT, they do not appear to be the Court's "swing" votes. They do "swing" from liberal to conservative more frequently than their colleagues. That's just another way of saying that their voting records are not as liberal as that of the liberals, or conservative as that of the conservatives. But they are NOT the "swing" votes in the sense that Kennedy and O'Connor have been. They have not been the deciding factors in making majorities. Rather, they have helped make majorities less often than their colleagues.

One more thing before concluding. Among the 3 ideological pairings, the conservative pro-prosecution pairing of Read and Graffeo has the highest rates of voting in the majority. The liberal pairing of Jones and Ciparick, collectively, has lower rates. True, just a bit lower. But that only reinforces what we've already noted. It is not the centrists that have the high rates of being in the majority in criminal cases at the Court of Appeals. Rather, the Judges at the ideological ends of the Court's spectrum do. The conservative pair followed--and closely so--by the liberal pair. The centrist pair is last!

Next, we'll take a look at which Judges are voting allies, and which clearly are not.

Court of Appeals: What Lippman Inherited (Part 2 - Criminal Law Voting Spectrum)

The first post in this series on the New York Court Watcher introduced the subject of the court inherited by Jonathan Lippman as the successor to now-retired Chief Judge Judith Kaye. Who are the Judges who make up the court over which Lippman now presides? More specifically, how have these new colleagues of his been voting on the state's highest court before he arrived on the scene? What are their track records? Our examination has begun with criminal cases. (See Court of Appeals: What Lippman Inherited (Part 1-Criminal Law Voting), March 8, 2009.) Let's take another look, with a couple of new graphs to help.

GRAPH 1
The Court Before Lippman
Criminal Law Voting Spectrum
(click to enlarge)

This graph is a reorganization of the one included in the March 8 post. The Judges are reordered to illustrate more clearly the Court's spectrum of pro-defendant voting--i.e., voting for the position more favorable to the criminal suspect or accused--from the most, Judge Theodore Jones, to the least, Judges Victoria Graffeo and Susan Read.

[41 cases are reflected in the graph (and in the one that follows). They represent every divided criminal law decision rendered by the Court of Appeals for the 3 year period, from calendar year 2006 through 2008. For the purposes here, that includes every non-unanimous result reached by the Court--i.e., at least 1 Judge dissented from the Court's disposition of the case. (Unanimous results accompanied by separate concurring opinions are not included, except where the disagreement on the controlling rationale for resolving the case is substantial enough that the concurrence more nearly resembles a dissent--4 of the 41 cases are of that sort.) 3 years was chosen simply to insure that the data are recent enough not to be stale and yet the period is long enough to be significant. The most recent 2 years are separately depicted as well; that is the period since Judge Jones, the last appointee before Lippman, joined the Court. (See New York Court of Appeals: The Jones Factor in Criminal Cases (Part 2) , August 19, 2008.)]

As depicted in GRAPH 1, the three Judges appointed by Democratic Governors have voting records more pro-defendant (read "liberal") than the Court as a whole. That's Mario Cuomo appointees Judith Kaye and Carmen Ciparick, and Eliot Spitzer appointee Theodore Jones. Not unexpected. Likewise, the four Judges appointed by Republican Governor Pataki have voting records that are more pro-prosecution--i.e., less pro-defendant--(read "conservative). That's Susan Read, Victoria Graffeo, Eugene Pigott and Robert Smith. Again, not unexpected.

But when the very same data is depicted a bit differently on the same basic graph, some less expected patterns are highlighted.

GRAPH 2
Lippman's New Colleagues
Criminal Law Voting Spectrum
(click to enlarge)

With retired-Kaye and the Court as a whole removed from the graph, and with space injected to separate some of the Judges, what emerges is 3 pretty distinct pairings among the current Court's membership.

Judges Jones and Ciparick have the most unmistakably pro-defendant (i.e., most liberal) voting records in criminal cases. Jones' record is, in fact, even distinct from Ciparick's in being so strongly pro-defendant. Indeed, in the 2 years that Jones has been on the Court, there has been a noticeable upswing in the pro-defendant records of both Ciparick and Kaye and of the Court itself. (On this last point, refer back to GRAPH 1, as well as to the August 19, 2008 post cited above.)

At the other end of the Court's ideological spectrum are Judges Graffeo and Read. They have the most unmistakably pro-prosecution (i.e., most conservative) voting records of Lippman's new colleagues. About 1/3 as pro-defendant as Ciparick's record; about 1/4 as pro-defendant as Jones's. (Reminds me of the startling contrast between Vito Titone's record [liberal] and Joseph Bellacosa's [conservative] during their overlapping years on the Court. Think also of Ruth Bader Ginsburg versus Antonin Scalia on the Supreme Court.)

But then there are the other two Republican (Pataki) appointees: Judges Smith and Pigott. Their voting records are twice as pro-defendant as Graffeo's and Read's. Yes, twice as liberal. Indeed, both Smith and Pigott have voting records as close to Ciparick's as to their fellow Pataki appointees. Their voting places them at the Court's center. Not only as the pair midway between the more liberal Jones/Ciparick and more conservative Graffeo/Read, but also (as depicted in GRAPH 1) with voting records which are ideologically very close to the decisional record of the Court as a whole.

So where will Lippman fit in? With Jones/Ciparick, Graffeo/Read, or Smith/Pigott? Or will his voting place him in between one of those pairs, or even outside one of the Court's current ideolgical ends? Maybe his presence will change the Court's dynamics and actually alter it's ideological spectrum. Time will tell.

But as for now, the Judges' voting spectrum in criminal cases is quite clear, and three ideological pairings are remarkably well-defined.

In the next post in this series we'll take a look at the voting alignments in criminal cases. Not just the ideological similarities, but who's voting with whom, as well as who's voting in the majority.

Court of Appeals: The Jewish Seat(s) on the Court

Guest Contributor:
Bennett Liebman, Esq.
Executive Director, Government Law Center, Albany Law School

There were a number of subplots involved in Governor Paterson’s naming of Judge Jonathan Lippman as Chief Judge of the Court of Appeals in January. There was the controversy over whether there was an intentional or indifferent absence of women and Latinos from the selection list submitted to Governor Paterson. There was the continuity inherent in naming Chief Judge Judith Kaye’s longtime Chief Administrative Judge as her replacement. Lost in these controversies, however, was the fact that Lippman’s elevation to the Court of Appeals continued a near century old tradition. There has been a Jewish Judge on the Court of Appeals since 1914.

Court of Appeals: What Lippman Inherited (Part 1-Criminal Law Voting)

For now, just a graph.

It depicts the voting patterns of the Court of Appeals Judges in criminal cases over the past 3 year and 2 year periods. Specifically, it shows the percentage of divided (i.e., non-unanimous) decisions of the Court in which each Judge voted favorable to the defendant on the issue that split the Court, and it does so for the most recent 3 years (2006 through 2008) and for the most recent 2 years (2007 through 2008). (It also includes the decisional record of the Court as a whole.)

These are the criminal law voting patterns of the Judges who comprise the Court of Appeals. The Court that newly-appointed Chief Judge Jonathan Lippman has inherited. As a depiction of these patterns, the graph gives a good idea of the ideological leanings of the individual Judges--i.e., of Lippman's new colleagues (as well as of his predecessor, now-retired Chief Judge Judith Kaye.) And these patterns, collectively, give a good idea of the Court's ideological spectrum in criminal cases.

Some of Lippman's new colleagues are obviously much more sympathetic to the claims of the accused (i.e., to due process concerns) than others. Some are much more attuned to the arguments of the prosecution (i.e., to efficient crime control).

More on this will follow. But for now, here's that graph:

GRAPH 1
The Court Lippman Inherited
Criminal Law Voting
(click to enlarge)

Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 3)

[The best moment of Tuesday night's presidential address? Justice Ginsburg entering the room to rousing applause and President Obama embracing her. If you weren't moved, you have no soul.

If your eyes were dry, you're not human.

My Mom, who has plenty of soul and is very human, couldn't say enough. According to her, Ginsburg "should get the Congressional Medal of Honor. You write that on your blog. You tell them your mother is 84 ['Nonna' is also the mother of 6, grandmother of 17, and great grandmother of 2.] and that she said it took a lot of courage for that woman to show up like that. She's giving hope to all those people suffering from that dreadful disease. I probably don't agree with her on many things [My Mom's a stalwart Republican.] but that doesn't matter. That poor thing. She's so brave. You tell them she deserves the Medal of Honor." Right again, Mom. And I just did.

It's become ever more clear why President Clinton fell in love with Ginsburg when he met her and decided she was his pick for the Court.]

In the previous two posts on the New York Court Watcher, we looked at how Justice Ginsburg's voting record compared to that of her colleagues on the Court's ideological spectrum. We then looked at how frequently her voting placed her within the Court's majority and in dissent, and, again, how her record compared to that of her collegues. (See Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 2), Feb. 25, 2009; and (Part I), Feb. 22, 2009.)

In this post we'll look at Ginsburg's voting alignments. Who she votes with in the controversial, tough, hot-button cases. How frequently, or infrequently, she's on the same side with each of the other Justices in deciding those issues. We'll also identify those "defining decisions" in which she broke ranks with her usual allies on the Court--her ideological kin--or voted on the ideologically or jurisprudentially opposite side of an issue from what is more typical for her (i.e., where she voted for the more conservative side of the issue). To start off, here's a nice little graph that, like graphs often do, shows an awful lot and makes it awfully plain.

GRAPH 1: Justice Ginsburg
Voting Alignments (%)
(click to enlarge)

Obviously, if not strikingly, from the graph, Ginsburg has been agreeing with Justice David Souter very often, and with Justices Antonin Scalia and Clarence Thomas very rarely. If the graph is reorganized in order of alignment with Ginsburg, from most to least (yes, descending order), the picture is even clearer--especially with regard to her other colleagues.

GRAPH 2: Justice Ginsburg
Voting Alignments (%) in Descending Order
(click to enlarge)

Not surprisingly, the order of alignment with Ginsburg is identical to the Court's ideological spectrum, from liberal to conservative. (See GRAPH-ic Total Recap - Supreme Court's 2007-08 Term: The Defining Decisions (Discrimination+Cultural Issues+Law & Order+Political Process), Nov. 26, 2008.) She voted with the Justices on the Court's liberal wing (i.e., Stephen Breyer and John Paul Stevens, in addition to Souter) much more frequently than she did with those on the conservative wing (i.e., John Roberts and Samuel Alito, in addition to Scalia and Thomas). Moreover, the difference is substantial. She vote with Souter 10 times more often than with Thomas and 5 times than with Scalia. She also voted with the Breyer and Stevens twice as frequently as she did with the somewhat moderate conservative Roberts and Alito. There is simply no doubt who are Ginsburgs allies on the Court, and who are her adversaries. And then there's swing-vote Justice Anthony Kennedy who--surprise, surprise--is a mix of ally and adversary.

As for adversaries, lets add the non-alignment or disagreement data to the graph. Of course, these are just the flip-side of the alignment or agreement data. But it all seems to become even more vivid when both sides are depicted. So here it goes, and this time with the actual number of "defining decisions" instead of a percentage. It helps to see exactly what we're talking about. And, again of course, the depiction of relative alignment/non-alignment is undisturbed.

GRAPH 3: Justice Ginsburg
Voting Alignments/Non-Alignments (#)
(click to enlarge)

It's just been said, but in a different way: look at Ginsburg's non-alignment/disagreement with Scalia and Thomas. And look at how great it is as compared to her non-alignment/disagreement with Souter, Breyer and Stevens. No missing that. But let's reorganize to put it all in order again--descending order of alignment/agreement, ascending order of non-alignment/disagreement.

GRAPH 4: Justice Ginsburg
Voting Alignments/Non-Alignments (#) in Order
(click to enlarge)

Take a look at the climb of disagreement from Souter, through the other liberals and the somewhat moderate conservatives, to Scalia and Thomas. The climb is pretty steep. It represents the sharp differences in the Justices' overall agreement with Ginsburg. The sharp increase in the extent of their respective disagreements with her. The stark contrast in their comparative ideological conflict with her. From barely no such conflict with Souter, to more than 5 times that with Kennedy, and more than 12 times with Scalia and Thomas.

Out of the 15 "defining decisions," Ginsburg disagreed with Souter in only 1. And even then it was only a partial disagreement. She was on opposite sides from Kennedy in 5 of the 15. From Scalia, in12 of them. From Thomas, in 13. It can't get much more stark than that.

Finally, when did Ginsburg break ranks? When did she take a more conservative position than her ideological allies? When did she take a position at odds with the more liberal side of an issue before the Court? Not surprisingly, she didn't do so very often. Indeed, it was quite rare.

Of the 15 'defining decisions," there were only 2 in which Ginsburg did not vote for the more liberal side of an issue before the Court. And in only 1 of those did she not vote for a more liberal position than other Justices. She never voted for a more conservative resolution of an issue than that taken by any of her colleagues in any of these cases. The closest she came was joining a unanimous decision for a conservative result.

That was in the Lopez-Torres case. Ginsburg joined all of her colleagues in a decision upholding New York State's nomination system for "supreme court" (i.e., trial court) judges. Ginsburg might have been expected to take sides with those who challenged the system on First Amendment grounds. She didn't. But neither did any of the other Justices.

In the other case, Ginsburg actually did take a position more liberal--or at least not as conservative--as her colleagues. In Moore, the Court was unanimous in holding that a state police search that violated that state's law was not an "unreasonable" search under the Fourth Amendment. But Ginsburg authored a separate concurring opinion, for herself alone, making plain that the Scalia-written Court's opinion took too broad a position. For her, the case turned on the narrow ground that the state itself would not exclude evidence for a violation of its own law. For her, a state law violation was not so clearly and unqualifiedly disconnected from an "unreasonable" search. So although her vote sided with the prosecution and not the accused, her position was somewhat more liberal--and less conservative--than that of her colleagues.

In any event, Lopez-Torres and Moore were the only 2 cases out of the 15 "defining decisions" in which Ginsburg voted for the conservative resolution of the issue before the Court. And in Moore, as we've just discussed, she took a position less conservative than the rest of the Justices. Stated differently, Ginsburg never took a position in any of the 15 "defining decisions" that was less liberal--or more conservative--than any of her colleagues. Her vote was the most liberal--or one among others that were equally liberal--in every one of those cases.

Well, that concludes this 3 part series on Justice Ginsburg. In previous posts we've looked at Roberts and Stevens, and we began to look at Scalia and Thomas together. (The New York Court Watcher then turned for a while to the nomination and confirmation of New York State's new Chief Judge, and then to Justice Ginsburg when she became ill.) The next several posts on the Supreme Court will finish the examination of Scalia's and Thomas's voting records, and then look at the records of the remaining Justices: Souter, Breyer, Kennedy, and Alito.

Till then, God bless Justice Ginsburg and may she be well. And the same to all of you.