Saturday, November 25, 2023

NYCOA: The Wilson Uptick

 Yikes! It's been a few months. First, it was severe neck trauma that kept me totally out of commission for a while, and since then it's been zealously catching up on delayed deadlines and postponed commitments. Now, for better or worse, I'm back!

There's lots to address about both the Supreme Court and New York's high court, the Court of Appeals. Let's begin with the latter. Specifically, let's take a look at a few developments since Rowan Wilson was elevated to Chief Judge this past April.

There has been an unmistakable increase in the Court's caseload. The dramatic drop in the number of cases that the Court was accepting and deciding in the previous several years was a source of widespread commentary. Most of it extremely critical. But whatever the assessment of that development, there could be no doubt that the caseload had indeed been reduced and that the reduction was dramatic--even drastic.

(NYS Senate Media Services)
Currently, with Wilson at the helm, the size of the caseload is changing again. It's on the rise. And the increase is more than a blip.
[All the data relied upon here are from the monthly calendars published by the Court itself, accessible at]

Contrasting the numbers from before and after Wilson became Chief Judge makes that clear. Consider the Court's monthly oral argument calendars prepared since Wilson has been presiding, and compare those with the calendars for the very same months the previous year. Thus far, the Court under Wilson has produced calendars for the September, October, and November sessions of this year, and the January session of next. Let's contrast those calendars with those produced for the same months a year earlier.

First, for the four monthly pre-Wilson calendars, there were a total of 35 cases on the schedule. That is, for September 2022 there were 10 cases scheduled; for October of that year there were 8; for November, also 8; and for January 2023 there were 9.

One year later, with Wilson as Chief Judge, the total jumped to 51. That is, 13 oral arguments were scheduled for this past September; 13 again for October; 11 for November; and 14 have already been scheduled for this coming January. 

That's a 45% increase. Chief Judge Wilson has been unequivocal that he believes the Court should be taking and deciding more appeals than it had been. In the several months since he was appointed to the Court's center seat, the Court seems to be moving in that direction.

Now, to be sure, that increase only tells us what the change has been from a year ago to the present. It does not tell us whether the Court's caseload was already beginning to increase in the months immediately prior to Wilson's elevation. That is, whether the caseload reflected in the final few calendars prepared before Wilson became Chief would reveal that an increase was already underway. Those calendars would be the ones for the months just prior to the Court's summer break this year--i.e., February, March, April, and May of 2023. [N.B., even though Wilson was appointed Chief Judge in April, the May calendar indicates that it had already been prepared in March.]

Here are the figures for those immediately-pre-Wilson calendars: in February 2023, there were 9 cases; in March, also 9; in April, 11 cases; and 6 for May. That's a total of 35.  The very same as the caseload for the 4 months a year ago. Hence, they indicate the very same 45% jump in the first 4 monthly calendars prepared under Chief Judge Wilson.

(Skip Dickstein/Times Union)
One last point on this Wilson uptick. Although it is significant, it does not (yet?) return the Court to the kind of caseload brought about under Chief Judge Lippman. He, like Wilson, believed the Court should be taking and deciding more appeals than it had been before he was appointed--most notably for Lippman, more criminal appeals.

For the last four monthly calendars prepared under Lippman, here are the figures: June 2015, 19 appeals; September, 26 appeals; October, also 26; and November, the last calendar under Lippman, 12. That's 84 appeals heard in the last four monthly calendars under Lippman.

Here's what the Lippman to early-Wilson figures look like:
(click to enlarge for a better view)

As depicted in the graph, that total of 84 appeals calendared over the last four months under Chief Judge Lippman means that the Court's caseload was eventually reduced to less than one-half after his retirement--i.e., reduced to 35. It also means that the Court under Wilson--with 51 appeals scheduled over four months--still has quite a bit to go if it is going to return to the Lippman caseloads. That's a big if.

The answer to that question depends on how much Chief Judge Wilson actually wants to increase the Court's caseload and, of course, how much his colleagues are interested in doing the same. They--individually in criminal leave applications and collectively in civil motions for appeal--will ultimately be deciding.

In the next post, we'll focus on criminal appeals, first on cases actually calendared and then on Criminal Leave Applications. Regarding the latter, we'll be looking, as we have in the past, at which Judges have been more willing to grant these requests to appeal in criminal cases, and which Judges have been less so.