Tuesday, August 30, 2011

Lippman's Goat--What Gets It? (Part 1: Introduction)

New York's Chief Judge, Jonathan Lippman, has been dissenting quite a bit. In fact, he has been dissenting more than any of his colleagues. That's what a survey of the 2010-2011 term (August 2010 through July 2011) shows.

[Some of my findings have already been reported in the New York Law Journal: "No Predicting 'Common Sense' Court Open to Dissenting Voices," by Joel Stashenko, Aug. 8, 2011.(http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202511503087&No_Predicting_Common_Sense_Court_Open_to_Dissenting_Voices .)]

Among the seven members of New York State's highest tribunal, the Court of Appeals, Lippman leads in both the number of dissenting opinions authored and the total number of dissenting votes cast. Actually, he is tied for 1st place with Judge Robert Smith for writing dissents, but he is alone in 1st place for dissenting votes.

To be specific, Chief Judge Lippman authored 15 dissenting opinions. These are full opinions--not just a line or two indicating agreement with someone else's dissent. He joined another 13 dissenting opinions written by some other member of the court. That total of 28 dissents by the top judge topped his court.

As has been discussed in this blog many times, dissents are particularly revealing. As stated last year when examining "Justice Alito's Goat" (after he had publicly displayed anger at comments made by President Obama at the State of the Union address):
So what else really annoys, irritates, even infuriates Justice Alito? What else bothers him, disturbs his tranquility, raises his blood pressure enough that he's willing to express his displeasure so openly? 
good place to look is his dissents.The dissenting opinions he authored. These are the disagreements with his colleagues' rulings where he felt strongly enough that he chose to go public. Strongly enough  that he chose to spend his time and use his staff and resources to compose a personal statement to say that his colleagues are wrong. The personal statement does not change the outcome of a case. It only serves to make public the author's disagreements, criticisms, and deeply held beliefs that the majority of his colleagues have made a mistake. A mistake that is so big and so bad that he cannot in good conscience be silent and just go along. 
More often than not, despite the near-obligatory "I repectfully dissent," these personal statements are harsh critiques, warnings of untoward consequences, or censures for irresponsible abuse of judicial power. In short, a dissenting opinion is usually the authoring Justice's personal tongue-lashing (pen-lashing?) of his colleagues. And it's one that is so ardently felt that the Justice feels compelled to go public. [See Justice Alito's Goat--What Gets It? (Part 1), Feb. 16, 2010.]
Now, Chief Judge Lippman's dissenting opinions may not reflect bitterness, rage, a rise in blood pressure, or frustration with his colleagues irresponsibility. But like dissenting opinions generally, regardless of the authoring Justice or Judge, Lippman's dissents do represent a belief on his part that the majority is wrong enough, that its ruling is troubling enough, that the disagreement is serious enough that it's worth expending the time and energy and collegial capital in going public with an opposing position that criticizes the court's decision.

In short, Lippman's dissents (like Alito's or those of any other Judge or Justice) tell us what he thinks is so important. And he wrote 15 of them! That's quite a lot. To place that number in perspective, his predecessor, Judith Kaye, averaged 2 dissenting opinions a year.

Soooo, what did Chief Judge Lippman dissent about? What did he think was so important?

Let's take a look at those 15 dissenting opinions that he wrote over the past year. What positions was he taking publicly in opposition to his own court? When the dots are connected, what do they tell us?

In the next post, we'll look at Lippman's dissents in criminal appeals. After that, we'll look at those in civil appeals. For now, all I'll say is: there are patterns, and they are fascinating, consistent, and revealing.