NY Court of Appeals: The Paterson v. Skelos Decision--Graphs for the Grumbling!

Last week's post reviewing the Court of Appeals decision in PATERSON v. SKELOS evoked considerable response. Among the most salient (if least substantive) was a complaint that the somewhat lengthy text was unaccompanied by any graphs. Yes, those graphs that have been a mainstay of this blog. Well, that confirmed what I have suspected all along. Some readers of the New York Court Watcher prefer a few pictures--uh, "visual aids"--to my unadorned droning. Fair enough.

Herewith, then, are a few graphs to help visualize the essence of what I was trying to say about that case.
GRAPH 1
The Votes in PATERSON
(by seniority)


As depicted in Graph 1, the vote was 4 to 3. The majority, as we all know, ruled in Governor Paterson's favor--i.e., that he did have the legal authority to appoint a Lieutenant Governor to fill the vacancy created when he became Governor upon Eliot Spitzer's resignation. Chief Judge Lippman, and Judges Ciparick, Read, and Jones comprised the 4 vote majority. (Note the color blue, as in Democratic/blue states, for the 4 Judges who sided with the Democratic Governor. Clever, huh?)

Judges Graffeo, Smith, and Pigott voted against Paterson--i.e., that he did not have such an appointment power. (Note the color red, as in Republican/red states, for the 3 dissenters who sided with Republican Senator Skelos, the plaintiff challenging the Governor's appointment.)

Chief Judge Lippman wrote the opinion for the majority. Judge Pigott for the dissenters. (This is indicated by the bold outline of the bars representing Lippman's and Pigott's votes.)

Graph 1 was organized by the Judges' seniority. Now let's reorganize by vote.
GRAPH 2
The Votes in PATERSON
(by vote)


Ah, that makes the voting a bit clearer. One interesting fact mentioned in the earlier post, but made more vivid when graphed, especially in this order, was the political make-up of the majority and dissent.

The majority (siding with Paterson) included all 3 Judges appointed by Democratic Governors--i.e., Lippman, Ciparick and Jones. All 3 dissenters (against Paterson) were Republican appointees--i.e., Pigott, Graffeo and Smith.

The swing vote in the case was Judge Read. She was appointed by Republican Governor Pataki (who also appointed all 3 dissenters). But she voted with the Democratic appointees. In short, Read broke political party ranks, and she was the only member of the 7-Judge court to do so.

None of this is intended to suggest that the Judges must have voted in bad faith, choosing to take partisan positions rather than honestly applying the law as they saw it. But, as in any case--indeed, as in any matter involving members of the human species--when the choice is between 2 positions that are very close, two positions that are both legitimate and supported by strong considerations, personal experience and wisdom and insight and perspective will tilt the scales. And when 6 out of 7 votes in an appellate decision are along party lines, the odds are pretty slim that political party values, sympathy, predisposition, or other influence have played no part whatsoever. Come on, judges are not robots. And, of course, thank God for that.

In any event, after watching oral arguments on line (Amazing, isn't it!), I was interviewed for my observations. I made clear that the Judges seemed "hot"--i.e., well prepared and very actively engaged in questioning the lawyers. I also noted that Kathleen Sullivan was brilliant in arguing for Paterson. (That constitutional scholar and former Stanford Dean seems generally extraordinary.) And it seemed that the court was leaning toward Sullivan's argument and quite skeptical of her adversary's. When asked about a prediction, I did say that I believed the court would rule for Paterson, and that the vote would be 4 to 3 (or better if any of the Republican appointees concluded that Skelos didn't even have standing to bring the lawsuit).

I said that all 3 Democratic appointees--based primarily on the questions that they asked, supplemented by their voting patterns and political affiliations--would very likely vote for Paterson. I was also pretty confident--for much the same reasons--that 2 of the Republican appointees, Graffeo and Smith, would vote against Paterson.

That left the remaining 2 Republican appointees, Read and Pigott. It was not easy to read Read. (Yes, I know what I just typed.) She asked little that showed her hand on the merits. She did, however, express considerable skepticism about Skelos's standing. Based on that, I thought she could end up being an additional vote for Paterson. But based on her voting patterns and political affiliation, I thought she would more likely vote with her fellow Republican appointees against Paterson on the merits. And I was wrong.

As for Pigott, his questions showed that he was quite skeptical that the office of Lieutenant Governor had to remain vacant until the next quadrennial gubernatorial election--as the attorney for Skelos had insisted. Pigott seemed to think that such a scenario makes little sense. Additionally, his voting record gives little reason to expect that he will vote like a Republican rather than a Democrat, especially in big cases. So based on his expressed skepticism at oral argument, as well as his typical preference for decisions that seem the most sensible--rather than legally nit-picky--I figured that he was a likely vote with the Democratic appointees for Paterson. And I was wrong.

So my predictions were wrong on Read and Pigott. But because those 2 simply switched the votes I had predicted, my ovearall predictions about the court's ruling and the raw vote count turned out to be right. Sometimes you win for losing! (It's like the time this summer I mistakenly bet on the wrong horse at Saratoga. He won. The horse I actually intended was a big loser.)

But I've now gone on for a few paragraphs without a graph. And this post is supposed to be compensation for the last graphless post. So without further ado, here's a graph depicting what I've just discussed: my predictions versus the Judges' actual votes.
GRAPH 3
The Votes in PATERSON
Prediction vs. Actual
(by seniority)


My predictions are represented by the very pale bars. Note the symmetry with the bars representing the Judges' actual votes, except for those for Read and Pigott. Alternatively, note the asymmetry with the bars for Read and Pigott, depicting how I had the voting of those 2 Judges reversed--i.e., had those 2 wrong.

Now, as before, let's reorganize the graph by vote--actual vote.


GRAPH 4
The Votes in PATERSON
Prediction vs. Actual
(by actual vote)


Again, that reordering seems to make things a bit clearer. The 4 actual majority votes; the 3 actual votes in dissent. The predicted 4 to 3 votes. The contrast between actual and predicted votes for both Read and Pigott.

In my Judicial Process Seminar this afternoon, I had the class watch the court's video of the oral arguments. Their impressions of Read and Pigott were interesting.

Based on her questions, the students had mixed views about Read's leanings in the case. As for Pigott, however, there was a fairly strong consensus: whatever his initial leanings, he seemed clearly to reject the answers given him by Skelos's attorney and, therefore, seemed likely to vote for Paterson. Indeed, watching the oral arguments this second time, I came away with those same impressions--my first impressions-- reinforced. I would still have predicted that Pigott was going to vote for Paterson. So, I wonder....

Was Pigott playing judicial poker? Was he trying to elicit an argument from Skelos's lawyer that might make more sense? Did he change his mind after oral argument? Was he deliberately trying to keep the lawyers, his colleagues, or court watchers off balance? Or is this exercise of making predictions from Judges' questions at oral argument simply fraught with a good deal of uncertainty by its very nature?

The latter is definitely true. But making predictions, however tentative, is still too much fun to stop doing so. And who knows, maybe one of those other possibilities was also true in this case. Well, maybe I'll suggest that to Judge Pigott when I next see him. That would be more fun than simply admitting that I--together with my brilliant Judicial Process students--simply got him wrong.

NY Court of Appeals: The Paterson v. Skelos Decision--The Judges, Politics, Votes, and Opinions

As most New York-based readers of the New York Court Watcher surely know, the state's highest court, the Court of Appeals, ruled today that Democratic Governor David Paterson did have the legal power to appoint a Lieutenant Governor.

A vacancy in the office of Lieutenant Governor resulted last year when Paterson was elevated from that office to become Governor upon the resignation of former Governor Eliot Spitzer. Paterson appointed Richard Ravitch earlier this year to fill that vacancy. His authority to do so, however, was questioned by politicians, lawyers, academics, and papers around the state. The case just decided by the Court of Appeals was brought against Paterson by leading Republican State Senator Dean Skelos.

The high court's decision was as close as it could be: 4 to 3. Notably--and no doubt curiously, even suspiciously to some--the voting was almost entirely according to political party lines. All of the court's judges who were appointed by a Democratic Governor sided with Paterson. Chief Judge Jonathan Lippman (appointed by Paterson himself), and Judges Carmen Ciparick (Mario Cuomo) and Theodore Jones (Eliot Spitzer). Equally notable--and curious, even suspicious to some--3 of the 4 Republican appointees voted against the Governor, siding with the Republican challenger. Judges Victoria Graffeo, Robert Smith, and Eugene Pigott (all appointed by George Pataki). The remaining Judge, Republican appointee Susan Read (Pataki), was the only one among the court's 7 members who, so to speak, crossed party lines. It was her vote, joining the 3 Democratic appointees, that gave Democratic Paterson his court victory.

Most of the votes seemed predictable at the oral arguments. To be sure, oral arguments--the questions asked by the individual Judges--can be quite misleading in determining how the judges will ultimately vote. But in some cases, and this seemed to be one, judges do show their hands.

For one thing, it did seem pretty clear that the court as a whole was much more supportive of the Governor's position than the 2 lower courts had been. The trial court had ruled against the Governor, and the Appellate Division, New York's intermediate appeals court, was unanimous in ruling the same way. By contrast, at oral arguments at the Court of Appeals, at least some of the Judges seemed very sympathetic to the Governor's position.

Lippman and Ciparick seemed strongly in the Governor's corner. Lippman's questions indicated that he found nothing ambiguous about the statutory grant of a general gubernatorial appointment authority to fill vacancies (Public Officer Law sec. 43.), and that he believed that any perceived inconsistencies with other statutory and constitutional provisions could readily be reconciled--"harmonized", as he put it. Ciparick's questions indicated that the general appointment authority made perfect sense as a way to fill vacancies until the next gubernatorial election.

Jones, who I don't think asked a question of the Governor's lawyer, made clear to the lawyer for opposing side that he wasn't at all convinced that the Republican Senator had any right even to bring the case--i.e., standing. [IAE, Jones's voting record certainly suggests that he would likely share the views of the other liberal Democratic Judges. Also, as the only African-American Judge on the court, it would hardly be surprising if he were sympathetic to the state's beleaguered first African-American Governor. But, you say, "Judges shouldn't...." Yeah, yeah, yeah. But like the rest of humanity, they do.] So those 3 votes seemed pretty good bets for the Governor.

On the other side, Graffeo and Smith seemed just as strongly opposed to the Governor's position. Graffeo made clear that she was worried about possible partisan abuses of the gubernatorial appointment power. E.g., unelected and unelectable politicians could become Governor through a manipulative scheme of appointments and resignations. [And, let's just see if Paterson ends up resigning to accept a federal appointment and the entirely unelected Ravitch becomes Governor. Some are suggesting that this is exactly what has been contemplated by Democratic leaders.] As for Smith, he was extremely skeptical that a gubernatorial power to appoint a Lieutenant Governor was even intended, especially since no Governor had ever sought to exercise such a power before, despite previous vacancies in the office.

The 2 question marks were Republican appointees Read and Pigott. Read's voting record certainly suggested that she would likely vote with the other Republican appointees--Graffeo and Smith. But she asked few questions and gave little indication of her views on the merits of the case. The only indication she gave was that--like Jones and, perhaps, others on the court--she had serious doubts that the Republican Senator even had standing. So her voting with the Democratic appointees to make a majority is a bit of a surprise, but not a shock given her misgivings about standing.

Pigott is much less ideologically predictable than most of the other Judges. It cannot usually be assumed that he is more likely than not to vote with the other Republican appointees. Additionally, at oral argument, he gave no indication that he was skeptical of the argument made on behalf of the Governor. His questions to the other side, however, did seem to indicate serious doubts about the proposition that the Governor could not fill the vacancy and, consequently, that there could be no settled replacement for Lieutenant Governor until the next quadrennial gubernatorial election. It certainly appeared [at least to me and others with whom I shared notes] that Pigott was leaning towards the Governor's position. His vote, against the Governor's claimed appointment power--indeed, his writing the dissent in the case--is the only real surprise following oral arguments.

[Let me confess. If I had wagered on the outcome of the case, I would have correctly bet on a 4 to 3 vote. BUT, I would have gotten Read and Pigott reversed.]

As for the substantive merits of the case, a few comments. Each side claimed that the issue was clear. That is, they each claimed that their position was clearly correct, and that the other side's position was clearly wrong. Well, both sides might think they were--and still are--clearly right, but the case did not seem clear to me at all.

For what it's worth, this is my take. If the issue in this case is approached like a lawyer or a judge typically approaches an issue--i.e., legalistically--then I think you get one answer. If the issue is approached like a political scientist or historian would approach it, then I think you get the other.

Legalistically, looking at the text of the statutory provision in question (POL 43), the Governor has the general power to fill a vacancy in any elective office by appointment. Beyond that, there is nothing in that statute, or in any of the other relevant statutes or state constitutional provisions, that clearly and expressly states that such a gubernatorial appointment power does not apply to the office of Lieutenant Governor.

Yes, an argument--even a strong one--can be made that the implications of the statutory and constitutional schemes are that the office of Lieutenant Governor is not to be subject to the general gubernatorial appointment power. (More about that later.) But nothing clearly or explicitly denies that power. And the judiciary usually defers to what the Chief Executive does--just like it usually defers to what the other co-equal branch, the legislature, does--unless it's clear that what's been done is illegal or unconstitutional. So the Judiciary defers to the Governor, absent some clear prohibition to the contrary. So the Governor wins. This is how the majority resolved the issue.

A political scientist or historian would take a different approach. Text and what is explicit is not nearly as accurate or as important as the implications for government and the historical context. When viewed in those perspectives, the much stronger argument is that the constitutional scheme was most likely intended to insure that the office of Lieutenant Governor would be treated differently than other offices. A vacancy was to be filled only in the next gubernatorial election--i.e., with the Governor and Lieutenant Governor running together--and that, in the interim, the president pro tem of the Senate would fill in. Period. The use of the general gubernatorial appointment power is certainly inconsistent with that scheme. And that is how the 3 dissenters saw it.

So the 4-3 majority adopted the more "legalistic" view of the statutory and constitutional texts. As to the more political sciencey and historian-like view of the overall constitutional scheme, the majority responded, in effect, "But the texts of the statutory and constitutional provisions do not explicitly make a Lieutenant Governor exception to the Governor's general appointment power; nor do those texts necessarily preclude the exercise of that appointment power to fill the vacancy till the next gubernatorial election."

Yes, there are other details and other technicalities in the arguments presented by the lawyers at oral argument and in the briefs. But that's the basic outline, and that's a distillation of the court's decision.

As for my own view of the merits--again, for whatever it's worth--let me start by repeating that I think the case was a close one. I think the court could legitimately have decided either way. But ultimately, I do think one view of the issue is stronger than the other. Following oral argument, I was persuaded that the Governor had the better position. No doubt, I was greatly influenced by Kathleen Sullivan--former Dean of Stanford Law School, eminent constitutional law scholar, someone who would have been an extraordinary choice for President Obama to nominate for the Supreme Court. She clearly, concisely and compellingly laid out for the court how the general gubernatorial appointment power exercised to fill the office of Lieutenant Governor made sense in the state constitutional and statutory scheme--no, how it was a virtually essential component of that scheme.

However, if I were on the court, I ultimately would have voted the other way. That is, with the dissenters. (Who, if I were on the court, might then have had the votes to be the majority!) After reading the 2 opinions circulated at the court--the opinion by Lippman that did become the majority and the opinion by Pigott that did become the dissent--I would have joined Pigott.

Both opinions are quite good, btw. They are of the type that each one is thoroughly persuasive when read alone. But I would ultimately have sided with the view of the dissent, that the gubernatorial appointment of a Lieutenant Governor is inconsistent with the scheme that seems almost surely to have been the underlying contemplation of the relevant constitutional provisions. This is not to say that, as a pure textual matter, the appointment power is explicitly denied or otherwise necessarily irreconcilable with the relevant constitutional provisions. But that the better, more sensible and most likely intended construction of those provisions is a scheme that limits the selection of a Lieutenant Governor to the quadrennial gubernatorial elections, and that the president pro tem of the Senate--and only that official--serves in the interim. [This argument was spelled out very convincingly in the amicus brief prepared by my Albany Law colleague Michael Hutter, Canisus College professor and state constitutional scholar Peter Galie, New Paltz dean, professor, and state government scholar Gerald Benjamin, and former Lieutenant Governor Stanley Lundine.]

But that's not how the court ruled. I ultimately do disagree with the court, but I would be hard pressed to claim that the court's view is clearly wrong, or a disaster, or driven solely by partisan politics unsupported by a good faith view of the law. There will surely be some who will contend that. And some of them will contend that in good faith and after much consideration. But like the issue itself in this case, I just don't see that that's clear at all.


And, BTW, this was another big-case victory for the new Chief Judge. More about his brief tenure thus far in shortly forthcoming posts on the New York Court Watcher.

Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining? (Part 2)

GRAPH 1
Conservatives vs. Liberals
Writing & Voting in Dissent
The contrast is stark. Conservative versus liberal Justices. The number of dissents last term. Both writing dissents and casting votes in dissent. The conservative Justices didn't dissent nearly as frequently as the liberal Justices did. They apparently had much less to complain about. Chief Justice Roberts, and Justices Scalia, Thomas and Alito were apparently much happier with the Court's decisions than were Justices Stevens, Souter, Ginsburg and Breyer.

As reflected quite vividly in Graph 1, the liberal Justices authored nearly twice as many dissenting opinions as did the conservatives. And the liberal Justices cast more than 1 and 1/2 times as many votes in dissent as did the conservatives. Total dissenting opinions: liberals 54, conservatives 29. Total dissenting votes: liberals 105, conservatives 66.

So it's clear who's winning the battle of dissents. But, of course, that also means it's clear who must be winning the battle of majority opinions. Winning the battle of decisions. Winning the battle of winning at the Court. The conservatives.

Back to the flip side for the liberals. They were dissenting much more. Complaining much more about the Court's decisions. Losing much more. Without looking at a single individual decision, these numbers say a lot about how the liberals and the conservatives fared last term. About the state of the Court and its case law last term.

In the previous post on New York Court Watcher, we looked at the number of dissenting opinions written last term by each Justice. (See Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining?, Sept. 15, 2009.) Now let's look at the number of total dissenting votes for each Justice--whether writing a dissenting opinion or joining one. We'll take the graphs from the last post, which depicted the number of dissents written by each Justice, and add a depiction of the total dissenting votes cast by each of them.

GRAPH 2
Who's Dissenting & How Often?
Number of Dissents Written & Voted
Immediately apparent from Graph 2 is the contrast between the 2 senior Justices. As we already saw in the last post, liberal Justice Stevens, the Court's Senior Associate Justice, wrote 11 more dissenting opinions than conservative Chief Justice Roberts. As additionally depicted in this graph, we see that Stevens cast 15 more total dissenting votes than did Roberts. 31 to 16. Virtually twice as many.

Also, the Justices whose dissenting frequency comes closest to Stevens's are 2 other liberals, Souter and Ginsburg. Each cast a total of 25 dissenting votes. Next comes the remaining liberal on the Court, Justice Breyer, with 24.

In short, the Court's 4 liberal Justices were the Court's 4 most frequently dissenting voters. This corroborates what we just saw regarding the total combined liberal dissenting votes versus the total combined such votes of the conservatives. And it underscores even further what we saw in the last post regarding the number of dissenting opinions by the 4 liberals versus the number for the 4 conservatives.

Let's reorganize Graph 2 to place the Justices in order of their number of dissenting votes, from low to high--in ascending order of dissenting-vote frequency, to state it more primly. As with the reorganized graph in the last post, this one offers little solace for liberals and much welcome news for conservatives.

GRAPH 3
Who's Dissenting & How Often?
Number of Dissents Written & Voted
(in ascending order of dissenting votes)
Reading Graph 3 from the far left shows Justice Kennedy--again, the Court's usual swing voter--not surprisingly with the fewest dissenting votes. We already saw that he had written the fewest dissenting opinions. Now we see that the total number of votes he cast in dissent, 6, was also the lowest among the Justices.

Following Kennedy, with the next lowest total of dissenting votes, are Roberts, Scalia and Thomas--each with 16. Then Alito with just 2 more. These Justices, the 4 who comprise the Court's conservative wing, are the ones who, except for Kennedy, cast the fewest dissenting votes.

Let's put it another way. Every conservative Justice voted in dissent fewer times than any of the liberals. Breyer cast 24 dissenting votes; Souter and Ginsburg 25 each; Stevens 31. Every liberal Justice voted in dissent more times than any of the conservatives.

Combine the numbers as we did in Graph 1 above and recall: liberals 105, conservatives 66. The liberals are winning big in the number of dissenting votes. That translates into the conservatives winning big in majority votes and, in turn, decisions of the Court.


In future posts we'll take a look at the decisions themselves. The numbers, the rulings, and the implications.

Supreme Court: Dissents 2008-09 Term, or Who's Been Complaining?

Dissents are fascinating. Much more so than majority opinions. At least insofar as what they tell us about the individual Justices.

GRAPH 1
Who's Dissenting & How Often?
Number of Written Dissents
Dissenting opinions, much more than majority opinions--and infinitely more than unanimous ones--are personal statements of the author. They represent matters that are sufficiently important to the dissenter that the Justice feels compelled to take the Court to task openly, feels compelled to specify the irreconcilable disagreement that has instigated the public protest, and feels compelled to explain why the disagreement is so significant.

So the dissenting opinions tell us a good deal about the author. And, they also tell us a good deal about the Court as a whole. They tell us about the disagreements that are actually dividing the Justices and about which we would not otherwise know. The actual disagreements which would otherwise be concealed. The disagreements which would otherwise be glossed over--i.e., avoided or "fudged"--in a unanimous decision.

As Herman Pritchett would say, these dissenting opinions--and the resulting divided (non unanimous) decisions--allow us to peek into the "inner sanctum" of the Justices' deliberations and discussions about the issues. They allow us to see what we otherwise would not. So they reveal a great deal about the Court. And even more profoundly and personally, about the dissenting Justice.

For this first New York Court Watcher post reviewing the Supreme Court's last term, let's start to look at the dissents. For now, let's just look at how many dissenting opinions were written by each Justice. How many times did each Justice feel compelled to write about his or her disagreement with the majority of the Court. Not how many times each Justice voted in dissent--whether writing or joining a dissenting opinion. (We'll get to that later.) But how many times each Justice actually wrote and signed an opinion saying, in effect, "My colleagues are wrong on this matter which is simply too important for me to be silent."

As depicted in Graph 1, there is a wide range of difference among the Justices in the number of dissenting opinions they each wrote last term. Beginning with the first 2 Justices on the graph, Chief Justice John Roberts and Senior Associate Justice John Paul Stevens, the contrast is stark. Stevens wrote nearly 3 times as many dissents as did Roberts: 17 to 6.

Fascinating and revealing. Why? Well consider these facts alone. Roberts is quite conservative and, as Chief, he is the leader (at least formally) of the conservative Justices on the Court; Stevens, being the Senior Associate, holds the same position among the Court's liberals. The leader of the conservatives wrote only 1/3 as many dissents as the leader of the liberals. Stated otherwise, the leader of the liberals publicly protested the Court's decisions 3 times as frequently. That is probably a darn good indication that the liberals had more to complain about than the conservatives. That the latter might well have had a much more successful year than the former.

Let's explore that just a bit more. In Graph 1, the Justices were ordered according to seniority. If that graph is reorganized so that the Justices are ordered in ascending number of written dissents, some things become even clearer. Indeed, some very interesting facts emerge. Facts suggesting some disturbing patterns for liberals. Lat's look at the reorganized graph.

GRAPH 2
Who's Dissenting & How Often?
Number of Written Dissents
(in ascending order of dissents)
Not surprisingly, swing-vote Justice Anthony Kennedy wrote the fewest dissenting opinions. As we've seen in past years, he is in the majority more frequently than any of his colleagues. In fact, especially in the hot-button cases where the Court is deeply divided, he is usually the Justice whose vote makes the majority. He's usually the 5th vote for the 5 to 4 majority.

But beyond Kennedy is what is very interesting and what suggests something disturbing for liberals. Look at the Justices who dissented the least last term. Other than Kennedy that is. As depicted in Graph 2, they are Roberts, then Justices Antonin Scalia, Clarence Thomas and Samuel Alito. The Court's 4 staunch conservatives. They were the ones who felt compelled to dissent the least often.

At the other end of the spectrum--ideological as well as dissent frequency--are Stevens, then Justices Stephen Breyer, David Souter, and Ruth Bader Ginsburg. The Court's 4 fairly reliable liberals. They are the ones who dissented the most. They are the ones who most frequently felt compelled to openly disagree with decisions of the Court. They are the one's who protested the most, while the 4 conservatives protested the least.

The suggestion in that is strong. It certainly reinforces the initial indication mentioned previously when the dissent records of Roberts and Stevens were contrasted. It would certainly seem that the conservative Justices likely had a much better year at the Court than did the liberals. They certainly didn't write as many dissents as the liberals.

Well, we'll look more closely at the patterns and trends in subsequent posts.

In the next post on New York Court Watcher, we'll look at the total number of dissenting votes for each Justice. How many times each Justice took sides against the Court's decision, whether by writing a dissenting opinion or joining one (i.e., voting in favor of one) written by a colleague. Chances are, the results will be similar to what we saw here. But we shall see.

Courts, Judges, Cases--But First: Saratoga Highlights!!!

[Ok, I've been a bit delinquent. Fact is, I spent much of my spare time the last few weeks at the track. For those who don't know, the thoroughbred racing meet at Saratoga lasts a mere 6 weeks. 36 glorious days of the best horses, best trainers, best jockeys, best races, best caller, best crowds, most legendary race course in America. I wasn't there every day. But most.

Hey, I don't watch baseball, football, basketball, tennis, NASCAR, or just about any other sport. Well, every once in a while, maybe for a few minutes. But that's about it. And, well, when I get a chance, I do love Union College hockey games--my alma mater, a few miles down the Thruway in Schenectady. But otherwise, Saratoga is really my sports passion.

So now that you know I'm a delinquent--spending time at the track when I should be researching, writing, and reporting on this blog--allow me some closure to the 2009 Saratoga meet. Before returning to the Supreme Court, the NY Court of Appeals, other high courts, justices, judges, hot-button issues and cases, let's recall some of the highlights of Saratoga. Here's my list.]

Highlights of the 2009 Saratoga Meet
(Yes, it would be neater and more conventional to do a Top Ten, or even 5 or seven. But I've reduced the list as much as I can bear. The best I could do was a Top Dozen.

And I would present my list in ascending order, from #12 to #1, to build the anticipation and suspense. But anyone who follows the ponies at all, or just Saratoga, knows darn well what #1 is going to be. So let's start at the top with that non-surprise.)

#1. Rachel Alexandra victorious in the Woodward. The 3 year old wonder-filly beat the older boys--meaning the faster and stronger ones--to become the first filly ever to do win this Grade 1 dirt route in its 56 year history. In fact, she was the first filly to beat the older boys in any such race in well over 100 years.

And this gorgeous lady did it in extraordinary style. Under the hands of Calvin Borel, she outran and exhausted the sprinters in the first half of the race, then she remained too fast for the stalkers who tested her next, and finally she held on to beat the closers in the stretch. Among those who challenged her: Da'Tara, last year's Belmont winner; Past the Point, who just barely lost to Curlin in last year's Woodward; Bullsbay, who won the Whitney earlier in the meet; and Macho Again, a multiple stakes winning champion with a ferocious closing, who finished second to Rachel by a head.

I've never seen or heard a louder or more excited crowd. Everyone, no matter what their betting interest, no matter how much or little they knew about racing--gamblers, families, little kids, racing die-hards--screaming and jumping and dancing and yelling the name "Rachel." And when she won, it continued. For the great colts she had beaten as they returned to the stables, and ever more thunderously for her as she was led from the winner's circle, past the stands, to begin her well-deserved and, apparently, lengthy rest before racing again.

Rachel beat the 3 year old boys earlier in the year in the Preakness-leg of the Triple Crown and again in the Haskell at Monmouth Park. In the Woodward, against the older boys, she beat by far the toughest field she--or any other horse this year--has faced. The Woodward is great every year. In my view, it is the greatest race of the Saratoga meet. Last year it was won by 2-time horse of the year, Curlin. The year before, in a runaway by Lawyer Ron, who had broken the track record in the Whitney a few weeks earlier. In years past, it has been won by Cigar (twice), Affirmed, Seattle Slew, Forego (4 times), Kelso (3 times), and Sword dancer (twice). Rachel has now earned a place in the Thoroughbred Pantheon with them.

As Tom Durkin proclaimed when Rachel crossed the finish line, "She is indeed, Rachel Alexandra the Great!"

#2. Careless Jewel runs away with the Alabama. The Canadian-based gray filly won this Grade 1 dirt route for 3 year old fillies by 11 lengths. Purchased for a mere $40k, she won her 4th straight race after throwing her jockey, Robert Landry, at the post. She passed the pack around the far turn and then ran away in a thrilling--as in amazing--display of dominance. (Reminiscent of Lawyer Ron in the 2007 Whitney and Woodward.) So much so that some in the crowd were chanting, "Bring on Rachel!" Well, that might be one helluva race.

#3. Pyro reemerges in the Forego. Following a 9 month absence to recover from knee surgery, the 4 year old colt returned to Saratoga for a 2d place finish earlier in the meet. Several weeks later, he won this Grade 1 dirt sprint. In one of the meet's most exciting races (run immediately before the Woodward), Pyro stormed from behind as he usually does, rallied 5 wide past the others and outran Kodiak Kowboy in a stretch duel. Great to see him back. (A sentimental favorite. My wife and I have been following him since he was a 2 year old, and then when he was 3 and emerging as a leading contender for the Triple Crown races.)

#4. Bullsbay shocks in the Whitney. After surging through the rest of the field around the far turn, the long(est)shot 5 year old colt (19-1) won this Grade 1 dirt route by holding off the hard charging Macho Again. Two great horses in a great stretch run. (These were the 2 that chased Rachel a month later in the Woodward. Macho Again bested Bullsbay in that one however.)

The race was bittersweet. It marked the end of the line for the great New York gelding Commentator, who was retired after failing to win what would have been his 3d Whitney.

#5. Six-Way Photo Finish. On Friday, August 21, an allowance race on the turf ended with one of the most astonishing finishes in the history of the race track. After running 1 and 1/16 miles, 6 horses were mere noses apart at the finish line. The crowd cheered wildly for the historic finish they had witnessed, while the stewards sorted through the photos. Grassy, ridden by Ramon Dominguez, was eventually declared the winner--by his nose among the other 5.

#6. Summer Bird best in the Travers. Proving that his victory in this year's Belmont stakes was no fluke, the "Other Bird" won convincingly in the slop against a strong field of 3 year old colts that included Quality Road, Charitable Man, Kensei, and Warrior's reward. While his brother, Kentucky Derby winner Mine That Bird, had to pass on the Travers because of recent throat surgery, Summer Bird did the family proud by adding to the laurels of their mutual Dad, 2004 Belmont winner Birdstone.

#7. Quality Road smashes Amsterdam record. Returning from a 4-month layoff, the 3 year old colt shattered the record for this Grade 2 dirt sprint. He had been an early favorite for the Kentucky Derby after he broke the record for the Florida Derby in March.

#8. Forever Together again in the Diana. The 5 year old champion gray mare won the Grade 1 turf route for the 2d year in a row. She won the Breeder's Cup Filly and Mare Turf last fall.

#9. Fabulous Strike fastest in the Vanderbilt. The 6 year old gelding surged deep in the stretch to pass Go Go Shoot and win the Grade 2 dirt sprint against some of the fastest horses running today. Kodiak Kowboy and Benny the Bull were among the others bested in the race by Fabulous Strike.

#10. Hot Dixie Chick wins 2. The 2 year old filly wowed Saratoga this summer. She won the Grade 3 Schuylerville the first day of the meet, and the Grade 1 Spinaway the last weekend. She may well be headed toward super-fillydom, like the better known Rachel Alexandra, with whom she shares connections. They are both trained by Steve Asmussen; and Hot Dixie is owned by Barbara Banke whose husband, Jess Jackson, owns Rachel.

#11. Linda Rice wins Training Title. Yep, she's the first woman to win the leading trainer title at Saratoga. With 20 victories, she edged Todd Pletcher who had 19. He has won 6 training awards at Saratoga and 19 at New York tracks. This is her first at Saratoga or anywhere else. Together with Rachel Alexandra, Careless Jewel, Forever Together and Hot Dixie Chick, Linda Rice has made 2009 the meet of the Lady Champions.

Mention should also be made of a Guy Champ, Ramon Dominguez, who won the leading jockey title. With 45 victories, he won by a wide margin. He also won titles at Aqueduct and Belmont earlier in the year.

#12. Sinatra closing with 'Summer Wind'. The greatest thoroughbred racing venue closed with the sounds of the greatest exponent of the greatest pop songs singing, perhaps, the greatest of his pop-chart recordings. No more perfect way to end Saratoga and the summer than with the Chairman of the Board saying farewell to what came blowin' in, lingered there, and then was lost.

Until next year, Saratoga....