New York Court of Appeals Judges Jenny Rivera and Shelia Abdus-Salaam (NYLJ/Rick Kopstein)
ALBANY – A legendary tale of the judicial titans Oliver Wendell Holmes and Learned Hand has it that after lunching together, Hand urged his friend to, “Do justice sir, do justice.”
“That is not my job!” Holmes hastily replied. “It is my job to apply the law!”
Close observers of the New York Court of Appeals imagine a similar discourse between the court’s two newest judges, Jenny Rivera and Sheila Abdus-Salaam.
Both judges are women, minorities, Democrats and appointees of Gov. Andrew Cuomo. Both joined the state’s highest court in 2013.
Over the past year, Rivera, who is Latina, and Abdus-Salaam, who is black, have frequently found themselves on the opposite side of cases, usually criminal appeals, articulating not only a difference of opinion on the results, but also on how those results should be reached.
See Related Item: Abdus-Salaam and Rivera Opinions
Lawyers, professors and judges say writings and decision-making by the high court’s junior judges in the 14 months they have been together evince a Holmes-Hand dynamic, with Rivera emerging as an advocate for the disadvantaged and embracing a Handian mandate to “do justice,” while Abdus-Salaam appears more as a Holmesian champion of judicial restraint.
“Rivera is always on the side of the rights of the accused or a worker or someone being discriminated against,” said Albany Law School Professor Vincent Bonventre, a longtime observer of the court. “If you wanted to interpret things very narrowly, you wouldn’t get where she is going. If she thinks the spirit of the law can get her to what she thinks is the best result, she will go there. Abdus-Salam is much less willing to do that.”
One attorney who regularly practices before the court, said Rivera, 53, and Abdus-Salaam, 62, are “totally different judges.”
“There is no question that Rivera has brought a very left-wing view into the court,” said the attorney.
The attorney added, “I don’t mean she is a wild-eyed communist, but she is definitely responsible for a lot of opinions on the criminal side that favor the defendant. Abdus-Salaam has no philosophical point of view that dominates her thinking on issues that come before her.”
Both Rivera and Abdus-Salaam declined comment for this story.
Members of the court vote unanimously about two-thirds of the time. But court watchers take special note of the one-third of the panel’s decisions where the judges differ. They say that dissents, and even concurring opinions, can highlight philosophical differences between the judges and reveal fissures that are obscured in what may well be a compromised unanimous opinions.
Rivera and Abdus-Salaam have served together on the high court since May 6, 2013, when Abdus-Salaam was confirmed. Rivera joined the court three months earlier.
In the relatively brief time they have been on the same bench, Rivera and Abdus-Salaam have been on opposite sides in 31 cases.
Rivera has been in dissent in 28 of 268 rulings on which her name has appeared since she and Abdus-Salaam have been on the court together, or just over 10 percent of the time.
Abdus-Salaam was in the dissent a total of 19 times out of the 210 rulings in which she has taken part in, or 9 percent.
Abdus-Salaam has not participated in a significantly higher number of cases than Rivera, presumably because several of the matters were before the Appellate Division, First Department, when she was on that bench. Judges do not say why they don’t take part in rulings.
The more revealing statistic is how infrequently the two judges were on the same side of a dissent: Rivera and Abdus-Salaam were joined in dissent in only five cases. On the other hand, of the 28 times Rivera has dissented since May 2013, Chief Judge Jonathan Lippman, who is usually deemed the leader of the liberal wing of the court, has been with her in 21 of those cases, or 75 percent of the time. In contrast, Lippman has been with Abdus-Salaam in five of the 19 times she has dissented, or 26 percent of the time.
Spiros Tsimbinos, editor of the State Bar Association’s New York Criminal Law Newsletter, said in a recent cover article that Rivera has quickly established herself as “the most pro-defense member of the court,” surpassing Lippman in that role, “and the judge who most often dissents in favor of the defense when the court goes the other way.” The article in the Summer 2014 edition was titled: “Judge Jenny Rivera for the Defense.”
According to Tsimbinos, Rivera’s voting record in favor of the defense is 20 percent higher than the court as a whole.
“When criminal defense lawyers count possible votes on the court, they begin by having a good chance to have Judge Rivera in their favor,” Tsimbinos, a semi-retired appellate practitioner now living in Florida, wrote. “If you don’t have Judge Rivera as a pro-defense vote, then a defense victory appears hopeless.”
Statistics aside, the writings of Rivera and Abdus-Salaam in particular cases highlight their philosophical differences.
In Matter of State of New York v. John S., 2014 NY Slip Op 03292, and Matter of State of New York v. Charada T., 2014 NY Slip Op 03293, both decided on May 8, the court considered the question of the admissibility of hearsay evidence in sex offender civil confinement proceedings.
Abdus-Salaam wrote for the 4-3 majority that a civil confinement hearing is a civil and not a criminal proceeding, and, therefore, “the respondent is not entitled to the constitutional protections that apply to criminal proceedings under the Fifth and Sixth Amendments.”
In contrast, Rivera wrote for the dissenters, articulating a more nuanced opinion that the “admission of hearsay basis evidence poses a substantial risk to an Article 10 respondent’s liberty interest” (NYLJ, May 9).
Additionally, in a 5-2 decision on the free speech rights of unionized teachers versus the safety interests of a school, the two judges evinced a decidedly different approach. Abdus-Salaam, writing for the majority and responding to criticism contained in a Rivera dissent, said that her colleague “has no qualms about making credibility determinations to bolster [her] conclusions.” (see Matter of Santer v. Board of Education of East Meadow Union Free School District, 2014 NY Slip Op 03189, and Matter of Lucia v. East Meadow Union Free School District Board of Education, 2014 NY Slip Op 03189.
Criminal Law Dividing Line
But it is the criminal cases that have primarily distinguished Rivera from Abdus-Salaam, and indeed from the rest of the court.
“Rivera is a refreshing liberal voice on the criminal defense side,” said a leading defense lawyer who specializes in criminal appeals. “Abdus-Salaam is not beloved by the criminal defense bar.”
The two new judges were on opposite sides in People v. Smith, 22 NY3d 462 (2013), where all the judges, except Rivera, agreed that a police officer may be allowed to testify about the description a crime victim gave about her or his attacker, so long as the testimony does not mislead the jury.
In her dissent, Rivera argued that officers’ testimony about the victim’s description of an assailant would tend to unfairly “bolster” the veracity of the victim’s statement.
Yet it was an obscure footnote to the dissent that generated the most interest of careful court observers. In the footnote, Rivera suggests that if the case was a rape rather than a robbery, she might be willing to allow such testimony.
“Arguably admission of the victim’s description testimony serves, regardless of its potential prejudice, a unique role in addressing the gendered treatment of rape identifications,” Rivera wrote. “Of course, defendant’s case does not present similar concerns which might justify, on narrow grounds, admission of the police officers’ testimony.”
Rivera, a career academic who wrote scholarly articles on social activism, cited an article in the Columbia Journal of Gender & Law, which bills itself as “the spacious home of today’s feminist movement” (see “How We Still Fail Rape Victims: Reflecting on Responsibility and Legal Reform,” 22 Columbia Journal of Gender & Law 1, 2011).
“I think she is the most liberal judge that court has had since [Judge Vito] Titone,” said one attorney who frequently practices before the Court of Appeals. “There is a radicalism to her, and she is not going to be a friend to the district attorney’s office, except maybe in white-collar cases. She certainly has her own mind, and it is a pro-defendant mind in criminal cases.”
Another appellate lawyer said that Rivera’s apparent activism stems from her upbringing. Rivera grew up in a tenement, the daughter of a Puerto Rican mother who came to New York in search of the American Dream and worked in a towel factory to pay her daughter’s Catholic high school tuition. She has frequently written about the plight of minorities.
“She has seen a lot of injustice done in her community on the criminal side, and I think she is very ready to fix that,” the attorney said. “Sometimes, she is too strong in fixing it, in my view.”
Abdus-Salaam also comes from humble roots. She was one of seven children born of working class parents in southeast Washington, D.C.
The first black woman on the Court of Appeals, Abdus-Salaam came to the high court after serving as a trial judge and justice of the First Department. Abdus-Salaam has said that she became a lawyer to help people like her family who were poor and unrepresented.
“Abdus-Salaam is very much a centrist,” said a Manhattan litigator. “Her opinions are long, very thorough and painstaking and, I think, straight down the middle.”
But some defense advocates complain that Abdus-Salaam is reluctant to use the law to advance the cause of social justice.
“We do not see her as particularly sensitive to the rights of criminal defendants, though she is not a reliable prosecution vote by any means,” said a defense lawyer in Manhattan.
The defense community was disappointed when Abdus-Salaam joined with the three judges regarded as conservatives—Victoria Graffeo, Susan Phillips Read and Eugene Pigott Jr.—to uphold a murder conviction where prosecutors refused to bring to the grand jury a witness who would have bolstered the defense, People v. Thompson, 22 NY3d 687 (2014).
“At most, the prosecutors made isolated missteps that could not have affected the outcome of the grand jury proceedings,” Abdus-Salaam wrote in the 4-3 opinion. “We do not endorse the prosecutors’ actions as the preferred way to present a case to the grand jury, but we decline to dispose of the well-founded prosecution here as a result of their handling of the matter.”
Rivera, predictably, joined the dissent.
No ‘Rookie’ Effect
Tsimbinos said in an interview that he was surprised by how often Rivera and Abdus-Salaam are on opposite sides.
“I thought they would be voting alike,” Tsimbinos said. “But that doesn’t seem to be the case. I think one of the reasons for their different approach is Judge Abdus-Salaam had several years of judicial experience and Judge Rivera came directly from the academic world. So there may be a difference in how they view things.”
Bonventre said time will tell how the two judges will evolve and grow.
Both figure to be mainstays on the court for years. Abdus-Salaam’s term runs through 2022, the year in which she reaches the mandatory retirement age of 70. Rivera’s 14-year term continues to February 2027, and she could be reappointed for a second term and serve through 2031 before aging off the court under the current retirement rules.
But Bonventre said that in reading their opinions and watching them at oral argument, he is struck by how quickly Rivera and Abdus-Salaam seemed to find their stride and mark their territory.
“There was no ‘rookie effect’ for either of them,” said Bonventre, who had clerked for two Court of Appeals judges. “I know they have very different backgrounds, with [Rivera] being a professor and not having any judicial experience, and [Abdus-Salaam] having quite a bit, but they are both behaving like they have been on the court for several years.”