The NY Court of Appeals: A Brief Stat-Pack on the Wilson Court (Part 1--Caseload)

As discussed on New York Court Watcher before, there have been changes at the Court of Appeals since the elevation of Rowan Wilson to be Chief Judge. They are hard to miss for anyone paying attention to New York's highest tribunal. In this, Part 1, let's look at the Court's caseload. Specifically, how it has increased:

(click to enlarge for a better view)

As the graph above shows, for two years in a row, the number of cases decided by the Court with Wilson presiding has been half-again what it was during the last full year of the Court under Chief Judge Janet DiFiore. Whatever the views about this increase, by appellate attorneys and members of the Court itself--desirable, unnecessary, inconsequential, or something else--the fact is that New York's court of last resort is in fact hearing and deciding more cases than it had been during the DiFiore era.

(Unless otherwise noted, the figures are the result of my own research and do not simply duplicate the official reports.)

The increase from 81 decisions in the last full year of DiFiore's tenure to 120 under Wilson thus far, is no small increase. But to put the numbers in historical perspective, the numbers under Wilson are still far below those of the pre-DiFiore past. Take a look:

(click to enlarge for a better view)

As the graph shows, the Court's caseload was far greater in the past. Whether under Chief Judge Sol Wachtler, Judith Kaye, or Janathan Lippman, the Court typically decided well over 200 cases each year. Yes, there were a few years under Kaye when the numbers plunged below that number. But otherwise, the caseload hovered between 225 and in excess of 250.

Whether it would be a positive development or not, the current caseload under Wilson would have to double to reach the customary caseloads under Wachtler, Kaye and Lippman.

(Again, unless otherwise noted, the figures are the result of my own research and do not simply duplicate the official reports.)

In Part 2, we'll take a look at appeals granted by the Court--as opposed to by the Appellate Division or as of right.

Part 2, Criminal Appeals--NYCOA: The Wilson Uptick

We previously looked at the increase in cases being heard at New York's highest court since Rowan Wilson was elevated to Chief Judge this past April and, more specifically, since he began producing the Court's calendars starting with this September's. We saw that the increase has already been half-again what it was previously. That is so whether the several Wilson calendars thus far produced are compared to those produced immediately before he became Chief or to the calendars for the same several months one year earlier. (See NYCOA: The Wilson Uptick.)

Now let's focus on criminal appeals, a source of particular concern the last few years--just as it had been prior to Jonathan Lippman's appointment as Chief Judge in 2009. (See e.g., NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 9: Significant Increase in 2009)) Similar to what we saw in the increase in the Court's schedule of cases generally, there has been an increase in the number of criminal appeals on the Court's calendar. In fact, the increase has been even more significant. It has doubled from what it was a year ago.

Source: Office of Governor of New York/
Darren McGee via AP

As noted in the previous post, even though Wilson was appointed Chief Judge in April, the May calendar of this year indicates that it had already been prepared in March. That means that the first calendars prepared under Wilson are those for the September, October, and November sessions of this year, and the January session of next. As we did with the totals for all cases, civil and criminal, let's compare the number of criminal appeals in these first four Wilson calendars with the pre-Wilson number for the immediately preceding four months, as well as with the pre-Wilson number for the same four months one year ago. For perspective, we'll again include the number for the last four months under Chief Judge Jonathan Lippman in 2015.

Here's what those comparisons look like:

(click to enlarge for a better view)

As depicted in the graph, the number of criminal appeals calendared under Chief Judge Wilson (26) is double the number from the same months one year ago (13); and more than half-again the number for the months immediately preceding the first Wilson calendars (16). To place these numbers in perspective, lest it be thought that the Wilson increase is too much too soon, note the number of criminal appeals in the last four months under Chief Judge Lippman (52)--twice that thus far under Wilson, and four times that from pre-Wilson one year ago.

Credit: Nathaniel Brooks for The New York Times

Related to that last note, lest it be thought that the criminal caseload under Lippman was a historic anomaly, it was actually in keeping with what had been the Court of Appeals' customary output of criminal decisions. Criminal appeals heard by the Court had dropped in the years immediately preceding Lippman's appointment as Chief Judge, and it dropped again after his mandatory retirement. (Remember: New York's moronic law that mandates the retirement of Court of Appeals Judges at the age of 70.)

Here's what that roller-coaster before, during, and after Lippman looked like:

(click to enlarge for a better view)

(Previously prepared for

The Incredible Shrinking Docket, Aug. 2, 2022.)

As reflected in the graph, the criminal caseload doubled when Lippman became Chief Judge from what it had been in the last several years under Chief Judge Judith Kaye. It dropped precipitously again under Chief Judge Janet DiFiore. But the criminal caseload under Lippman was actually much more in line with what it had been in the early years of Kaye's tenure and with what it had been before that under Chief Judge Sol Wachtler. The point being that the 26 criminal cases in the first four monthly calendars under Wilson, which would amount to a criminal caseload of 78 cases for twelve months, is far from an excessive number when viewed in context.

In the next post in this series, we'll look at Criminal Leave Applications. Specifically, we'll look at how many CLA's each of the Judges has been granting. A not-surprising hint: some Judges grant many more than others.

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.

(See, e.g., in New York Court Watcher: The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload; The Graph; The Incredible Shrinking Docket: The Court of Appeals' CRIMINAL Caseload (with graphs!); The Incredible Shrinking Docket: Criminal Appeals (CLA's) Granted by Court of Appeals Judges. See also, Thomas R. Newman & James Edward Pelzer, Declining Dispositions of the Court of Appeals, Albany Law Review.)

(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 https://www.nycourts.gov/ctapps/.]

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.

The Incredible Shrinking Docket: Criminal Appeals (CLA's) Granted by Court of Appeals Judges

I wish Chief Judge Janet DiFiore, of whom I am personally fond, the very best on her announced departure from the Court.

Oral Arguments/Court of Appeals Website

We've previously looked at the Court of Appeals' dramatically reduced caseload over the past few years--both the total appeals and, separately, the criminal cases. Now let's look closer into the latter.

Let's see how many criminal cases the Court itself has been choosing to hear--as opposed to criminal cases reaching the Court as of right or because an Appellate Division Justice granted leave to appeal. Let's compare those recent CLA (Criminal Leave Application) numbers with the numbers in the past. Then let's see how many CLA's each of the individual Judges has been granting.

(For those who may not be familiar, here's a quick outline of the CLA process:

When a party, whether prosecution or defense, loses in the court below, it may choose to apply to the Court of Appeals for review. That "Criminal Leave Application" (CLA) is assigned by the Court to one Judge who alone decides whether or not the Court will hear the appeal. These CLAs are distributed equally and randomly to the individual Judges. As might be expected, some Judges are more generous in granting CLAs, and some Judges are less so. For this reason, the process is viewed by many as inherently unfair, and certainly less fair than the different procedure for civil cases, in which the entire Court decides whether to hear the appeal. The odds of having one's CLA granted and, therefore, of having one's case reviewed by the Court, depend to a large extent on the particular Judge to whom the CLA is assigned.)

Here's a look at the collective number of CLAs granted by the Judges of Court for each year from 1988 through 2021. That span of time covers the last several years of the Court under Chief Judge Sol Wachtler, the entire tenures of Judith Kaye and Jonathan Lippman in the center seat, and continues through the last several years with Janet DiFiore presiding:

(click to enlarge for a better view)

Similar to the figures we've seen previously regarding the Court's caseload (the total appeals and the criminal cases), the Court under Chief Judge DiFiore has been granting far fewer CLAs than the Court had typically done in past years. Indeed, as clearly shown in the graph, the decrease has been drastic. And that decrease began as soon as DiFiore replaced her retired predecessor, Jonathan Lippman.

Let's simplify the graph a bit by looking at 5-year averages--again from the tenure of Chief Judge Sol Wachtler through the recent years under DiFiore. Take a look:

(click to enlarge for a better view)

As the graph makes plain, the Judges of the Court under Chief Judge DiFiore have been granting less than half the number of Criminal Leave Applications that the Judges had been granting under Chief Judges Wachtler and Lippman, as well as during the early years of Chief Judge Kaye's tenure. The only era approaching the decrease that has occurred under DiFiore is that which occurred in the last several years under Kaye. (Notably, that decrease under Kaye followed Republican then-Governor Pataki's harsh criticism of the Court for "coddling" criminals and his appointing a majority of "law and order" Judges to the Court.)

For a seven-Judge court, the annual average of 49 CLA grants under DiFiore equates to an average of  7 CLA grants per Judge. That contrasts with over 14 per Judge under Lippman and during the early years of Kaye's tenure, and with even more than that under Wachtler.

Let's now look more closely at the contrast in CLA grants from the years with Lippman as Chief Judge to those under DiFiore. Specifically, let's take a look at the number of CLAs granted by the individual Judges during those two eras. Here it is:

(click to enlarge for a better view)

[The graph includes the records of all the Judges who were on the Court for at least 3 of the 5 years under either Chief Judge Lippman or DiFiore. All the Judges were on the Court for the full 5 years in the respective eras, except for the Judges who were on for 3 years as indicated by an asterisk.]

As the graph shows, under Chief Judge Lippman, every Judge, except one (Susan Read), was granting more CLAs per year than every Judge has been doing under DiFiore. In fact, Chief Judge Lippman and Judges Victoria Graffeo, Eugene Pigott, and Robert Smith--the latter 3 all appointees of Republican Pataki--were granting more than twice as many CLAs as every Judge has been doing under DiFiore, except for Judge Rowan Wilson.

Notably, Wilson has been granting significantly more CLAs than any other Judge under DiFiore, and he is the only one whose grants approach that of most of the Judges under Lippman. By sharp contrast, three of the Judges under DiFiore--the Chief Judge herself and Judges Leslie Stein and Michael Garcia--granted less than 1/3 of any Judge under Lippman, and far less than that compared to some of the Lippman Judges. In fact, DiFiore, Stein, and Garcia granted less than 1/2 of any other Judge during DiFiore's tenure.

What does all this mean? Well, the most obvious is that parties in criminal cases had a much greater chance of having an appeal heard by New York's highest Court under Chief Judge Lippman than under DiFiore. Beyond that, parties seeking to have their cases reviewed in recent years had better odds of succeeding if their CLAs were assigned to Judge Wilson than to other Judges on the Court. Indeed, if the parties' CLAs were assigned to DiFiore, Stein, or Garcia, their odds of having the Court of Appeals review their cases were greatly diminished than if their CLAs had been assigned to other Judges on the Court--not only Wilson, but also Judges Jenny Rivera or Eugene Fahey.

It is no wonder that the CLA process has come under so much bitter criticism by so many lawyers, judges, and their related organizations. Many agree with Judge Pigott--who happened to serve under Chief Judges Kaye, Lippman, and DiFiore. He has been outspoken about the CLA process in which he had a good deal of experience: "There’s no doubt this has to change. It’s absurd." [As quoted in, Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

Yes, in my view, absurd and terribly unfair. And those characteristics are only intensified when the Court, and specifically some members of the Court, drastically reduce the number of CLAs being granted.

The Incredible Shrinking Docket: The Court of Appeals' CRIMINAL Caseload (with graphs!)

We've previously looked at the reduction in the caseload at New York's highest court. (See The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload [The Graph].) Now we'll focus specifically on criminal appeals.

Credit: Daniel case

The magnificent Court of Appeals courtroom.

This has been a source of considerable consternation for the state's criminal defense bar. The lack of criminal defense experience among the judges, the decidedly pro-prosecution direction of the Court's decisions, and the sharp decrease in criminal appeals being accepted for review and decided--these have all been the subject of much disappointment and criticism.

The recent complaint of one prominent defense attorney is typical: “The Court of Appeals under [Gov. Andrew] Cuomo’s appointments has been moving further and further to the right, which is troubling given that the voting patterns of the state of New York demonstrate that the people of New York don’t view the world that way,”

[Alice Fontier, immediate past president of the New York State Association of Criminal Defense Lawyers, as quoted in Progressives Mobilize to Block Cuomo’s Tough-on-Crime Pick For Highest NY Court, by Sam Mellins, New York Focus, June 4, 2021.]

And another: "The court had done more work in the past. So what’s going on and what’s driving that change?" said Susan Bryant, executive director of the New York State Defenders Association. "I think anytime you see a significant shift in a court hearing cases, it’s concerning."

[See Drop in criminal caseload puts spotlight on how top court chooses its cases, by Yancey Roy, Newsday, July 18, 2021.]

It's not just criminal defense lawyers who have perceived a problem. Indeed, two recently retired Court of Appeals Judges, Eugene Pigott and Robert Smith, have both expressed concern about the process in which criminal cases are granted an appeal. The random assignment of CLA's [Criminal Leave Applications] to a single Judge, who is then the sole decider of whether a criminal appeal is heard by the Court, inevitably introduces a considerable degree of arbitrariness into the system.

Some Judges are much more generous in granting CLA's. Others are much less so. Hence, the odds of an appeal being accepted is necessarily affected by which Judge happens to get the CLA. Moreover, the wisdom and consistency of the process, as well as its fairness, would undoubtedly be enhanced if more than one Judge--let alone the entire Court, as in civil cases--reviewed the applications seeking an appeal.

Many share the view of Judge Pigott who has been quite pointed: "There’s no doubt this has to change. It’s absurd." [As quoted by Yancey Roy, cited above.]

[Disclosure: I do share the concerns of the criminal defense lawyers and I emphatically agree with Judge Pigott.]

But regardless of one's view of the Court's current treatment of criminal cases generally or of the CLA process in particular, there are the facts. Let's get to them.

First, let's take a look at the Court's criminal caseload. Specifically, let's look at the number of criminal appeals decided annually over the years. Previously, when we looked at the total number of appeals decided--civil and criminal--we began with the Court during the tenure of Chief Judge Sol Wachtler and continued through the Court under Judith Kaye, Jonathan Lippman, and currently under Janet DiFiore. We'll do the same with criminal appeals.

Here's the data, from the Court's own Annual Reports, on the number of criminal appeals it decided each year beginning with 1988, while Wachtler was Chief Judge, through 2021, the last period for which data is available. I've already graphed it all for ease of comparison visualization (and because I myself enjoy these):

(click to enlarge for a better view)

As is clear from the graph, the number of criminal appeals decided by New York's highest court has declined dramatically in recent years--drastically if you ask the criminal defense bar. It mirrors the decrease in the total criminal plus civil caseload that we've previously seen.

The criminal caseload remained roughly the same from the latter years of Wachtler's tenure as Chief Judge through the early years under Kaye. It then dropped significantly during the remaining years of Kaye's tenure, rose again significantly while Lippman was Chief Judge, only to drop once more the last several years under DiFiore. In fact, the current criminal caseload at the Court is the lowest it has ever been throughout this entire period--the only equivalent being the very lowest it was during a time of plummeting caseloads under Kaye.

To say the same thing with figures: the Court decided at least 90 criminal appeals annually, and usually more than 100, under Wachtler and through the first several years of Kay's tenure. Thereafter--and following then-Governor Pataki's relentless bashing of the Court for supposedly coddling criminals and disfavoring victims--the Court under Kaye sharply cut its criminal caseload. With some fluctuation, the annual number was roughly half of what it had been--from over 100 to less than 50 in some years.

When Lippman became Chief Judge, he made clear his intent to increase access to the Court and, perhaps most emphatically, to increase the number of criminal appeals the Court would hear.

(See Joel Stashenko, "Chief Judge to Review Why Court Accepts Few Criminal Appeals," NYLJ, April 22, 2009; also NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? [Part 1: Overview].)

Consequently, the Court's criminal caseload under Lippman increased as sharply as it had just previously dropped. Throughout his tenure, the Court would hear at least 90 criminal appeals annually, and in some years more than 100.

During the first year of DiFiore's tenure as Chief Judge, when the Court was hearing criminal cases largely accepted for review the year before under Lippman, the criminal caseload exceeded 100. Ever since, however, there has been a steep decline. In recent years, the Court has decided 40+ criminal appeals, which is half of what the Court's criminal caseload was under Lippman. Indeed, it is less than half of what it was under Wachtler or during the first several years under Kaye. It is even less than it was after the caseload plummeted under Kaye.

Let's conclude with another graph that may help to simplify all these figures. Here are the 5-year averages of the Court's annual criminal caseloads, again from Wachtler to DiFiore:

(click to enlarge for a better view)

As this graph makes crystal clear, across much of the last several decades, the Court of Appeals decided 100 or more criminal cases a year. The Court decided far fewer in two separate periods: the latter part of the Kaye era and the last several years under Chief Judge DiFiore.

Whatever the particular causes or rationale, the Court's caseload in both of these periods dropped to approximately half of what it had been in the immediately preceding years. Such dramatic changes would seem strongly to evince deliberate policy choices. One of the Court's recent retirees, interviewed about the recent drop in the criminal caseload, was reported to have explained that "the chief judge’s approach set a tone. 'I do think it made a difference who the chief was,' [former Judge Robert] Smith said. 'Leadership has an effect.'" [From Yancey Roy, cited above.]

[It should be noted that the Court's total caseloads--civil plus criminal--were much greater prior to the periods discussed and depicted in the two graphs, as well as in the two previous posts. For example, throughout the early 1980's, the Court's total caseload was more than double what it would be in the latter years of the Wachtler era. The Court would regularly decide more than 700 appeals annually. That total caseload dropped significantly in the later 1980's after the Court's jurisdiction was legislatively changed, effective in 1986, to give it much greater control over its docket.]

We'll next look at the number of CLA's [Criminal Leave Applications] granted by the Court annually over the years and, recently, how many CLA's the individual members of the Court have been granting.

The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload (The Graph)

In The Incredible Shrinking Docket: The Court of Appeals' Reduced Caseload, we looked at the total appeals decided by New York's highest court each year from 1988 through 2021, the last full year for which figures are available. The data are all derived from the Court's own Annual Reports.

The visualization of the reduction in caseload over the years makes clear just how dramatic it has been, especially recently. Here it is:

(click to enlarge for a better view)

As discussed previously and now depicted in the graph above, the total of appeals decided annually by the Court has, indeed, fallen dramatically from what it had been. During the last several years of Sol Wachtler's tenure as Chief Judge through the early years of Judith Kaye's, New York's highest court typically decided almost 300 appeals annually. There was a significant drop in the later years of Kaye's tenure and then an increase while Jonathan Lippman was Chief Judge. Most recently, during Chief Judge Janet DiFiore's tenure, the total appeals decided annually dropped significantly to levels not previously seen.

Again, it may well be argued whether this development is a good thing or a bad one. But there can be no argument that the Court today is deciding fewer cases--much, much fewer.

Next post on the Court's caseload, we'll look at criminal appeals, including which Judges are granting and which Judges aren't.

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.