The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload

New York's high court has been deciding fewer cases. Much fewer. That may be a good development or a bad one. Wise or foolish. There are arguments pro and con. But there is no arguing that the reduction has been dramatic.

Oral Arguments 2021

In the past year, the 2021 term, the Court of Appeals decided 81 appeals. That contrasts with the decisional record several years earlier which exceeded 200 appeals annually. Indeed, over the past several decades, the Court has always decided, at a minimum, more than twice as many appeals as the Court did last year. Not too long ago, it was three of four times as many.

With Recent Appointee,
Justice Scalia, 1986 Term

A similarly significant reduction has occurred at the nation's high court. The Supreme Court's decisional record has shrunk to less than one-half of what it had been. In 1986, shortly after Antonin Scalia was appointed to the Court, the new Justice told me that the Court's caseload did not permit adequate time and effort for each appeal. According to him, the caseload had to be cut.

Apparently, Scalia's colleagues agreed with him. Depending on how cases are counted, the Court had decided over 160 appeals on the merits the year before Scalia was appointed; last year the number was less than 60.

Chief Judge DiFiore

The significant drop in the caseload at the Court of Appeals in recent years certainly suggests that an assessment, similar to that of Scalia's, has been made by the Judges on New York's high court. Let's look at the Court's own data from its Annual Reports.

Here's from the latest report covering calendar year 2021:

(click to enlarge for a better view)

As the Court's Appeals Analysis indicates, the annual combined civil and criminal total of appeals decided by the Court fell from 142 to 81 in five years. Each year, from 2017 to 2021, the total number of decided appeals declined from the previous year.

To place this recently declining caseload in perspective, consider the total appeals decided annually by the Court in the immediately preceding years. These are the years shortly before and after the transition from the previous Chief Judge, Jonathan Lippman, to the current one, Janet DiFiore. Lippman's term ended at the close of 2015, the year in which he reached New York's (utterly moronic) mandatory retirement age of 70. DiFiore was appointed to fill the center seat early the next year.

Here are the caseload figures for the surrounding years:

(click to enlarge for a better view)

As noted in its 2017 Annual Report, the Court decided more than 200 appeals in the last few years of Lippman's tenure, 2013 -2015, and even the next year, 2016, when DiFiore was appointed. Of course, the 225 total decisions that year necessarily includes many appeals, both civil and criminal, that had been accepted for review the previous year while Lippman was still Chief Judge.

Chief Judge Lippman

Notably, the following year, 2017, when the total decisions reflected the cases accepted for appeal after DiFiore became Chief Judge, the number dropped precipitously--from 225 to 142. And as previously shown, that number would continue to drop, falling to 81 total appeals decided in 2021.

It should be made clear that those last few years of Lippman's tenure were not an aberration. Throughout his years as Chief Judge, the Court decided in excess of 200 appeals annually.

Here's the data from the Court's 2014 Annual Report:

(click to enlarge for a better view)

In each of the years displayed, 2010-2014, the Court under Chief Judge Lippman decided well over 200 appeals annually. As previously seen, that caseload began to decline--and the decline accelerated through 2021--following Lippman's retirement. 

Chief Judge Kaye

It might be asked whether the caseloads during the Lippman years were unusually high and perhaps the currently much lower caseloads are closer to the norm. There is no doubt that the Court's docket was somewhat higher while Lippman was Chief Judge than what it had been in the preceding years under Chief Judge Kaye.

The difference in criminal appeals was most notable. [This was covered quite a bit on New York Court Watcher; see e.g., NYCOA: Criminal Appeals (Part 2)--Annual Totals Through the Years.] But the difference in total appeals decided was nothing like the recent dramatic drop.

Take a look:

(click to enlarge for a better view)

In the last several years of Chief Judge Kaye's tenure on the Court, the caseload hovered just under or above 200 appeals. The transition to Chief Judge Lippman in 2009 saw little immediate change. Years later, as just seen, the Court's decisional record under Lippman would increase to an annual average of around 240 appeals. But even considering the somewhat lower average previously during the Kaye years, the total appeals decided at that time far exceeded the current figures--a little more or less than twice the decisional record of the last two years.

Finally, to provide a bit more history to Court of Appeals caseloads, let's look at the total appeals decided immediately prior to the Kaye era. Here are the figures from the Annual Report for 1992, the last year of the Court under Kaye's predecessor, Chief Judge Sol Wachtler. 

(click to enlarge for a better view)

Chief Judge Wachtler

As seen from that Annual Report, the Court's caseload during the Wachtler era was even greater than it was under Lippman--and substantially so. Higher than 300 or just below, the Court's caseload for the last several years under Wachtler averaged more than 100 appeals what it became under Kaye. The caseload then increased under Lippman--although not to the Wachtler levels--and then it dropped significantly under DiFiore.

Indeed, the Court's current caseload is far lower than it ever was under Chief Judges Wachtler, Kaye, and Lippman. The total appeals decided by the Court of Appeals in the last two years has not been even half of what the figures usually were under Wachtler, Kaye, and Lippman. In fact, they are about half the very lowest figures in any of those eras. And last year's figure--81 total appeals decided--was lower than that.

Again, there are pros and cons to a reduced caseload, even a drastically reduced one. The current Court of Appeals, like the Supreme Court, is apparently persuaded by the pros. And to be fair, the Court of Appeals' caseload, with 7 Judges and 3 law clerks each (with the Chief having 4), is still considerably higher--half again as high--than that of the Supreme Court, with 9 Justices and 4 clerks each (with the Chief having 5).

That is not an apologia for the Court of Appeals. To be frank, I think the Court should accept more appeals. And to be blunt, I think the Supreme Court's caseload is pathetic. [I did tell Justice Scalia I disagreed with his assessment.] But regardless of the Court of Appeals' assessment or Scalia's--and certainly regardless of mine--the fact is that New York's high court is hearing far (as in far, far) fewer appeals than it has in the past.

In a forthcoming post, we'll look at the number of criminal appeals being accepted for review, by the Court and by each of the Judges.