Thursday, September 29, 2016

Early DiFiore Court Patterns (Part 1- Who's Dissenting?)

(Summer's gone, the Saratoga meet has ended, and the fall semester is well underway.
New York's highest court is back from it's summer break. So let's start to look at where it's been since Janet DiFiore assumed the center seat.)

We'll begin our review of the DiFiore Court to date by looking at who has been dissenting--writing dissenting opinions and joining those written by others.

The following graph reflects every divided decision rendered by the Court of Appeals, New York's highest tribunal, since Janet DiFiore was appointed Chief Judge in February of this year. Including those separate concurring opinions which disagree with the majority on a significant substantive issue, the total of such divided decisions to date is 17.

Take a look.
(click on graph to enlarge)

Perhaps the most salient figures reflected on the graph are the highs and lows. Judge Jenny Rivera has authored the most dissenting opinions. Her 10 dissents significantly exceeds the number written by any other member of the Court. The same is true for the total number of dissenting votes she has cast, 15.

Looking beyond Rivera's numbers, what we shall see in subsequent posts is that her dissenting votes reflect a record that is strongly ideologically liberal--i.e., siding with the accused in criminal cases and with injured and vulnerable plaintiffs in civil cases.

At the other end of the spectrum--the dissenting spectrum, that is--Chief Judge DiFiore has neither authored nor joined a single dissenting opinion. While others on the Court have dissented in numbers far lower than that of Judge Rivera, none come close to DiFiore's record of having never been in dissent.

Looking beyond that mere number of zero, however, belies some likely misperceptions. As we shall see in subsequent posts, DiFiore's zero dissenting record is not simply the result of her casting in with the majority. Indeed, she herself has created the majority in many of those cases. Certainly that is true for the 8 cases thus far in her tenure where the Court was divided 4 to 3. While the bare numbers cannot reveal whether or not she was actually responsible for wielding the influence to form the majority in such cases. What is true is that, in every one of those 8 bare-majority cases, a change in her vote would have changed the Court's decision.

There's obvious lots more underlying the figures for both DiFiore and Rivera, as well as for the other members of the Court. We shall deal with much of this in future posts.