In its first years under Chief Judge Janet DiFiore’s leadership, judges of the New York Court of Appeals have shown that they won’t pull punches when it comes to disagreeing with their colleagues through dissenting opinions.
Observers who’ve examined the details said the atmosphere of the high court—comfortable with showing its divisions, not as focused on presenting consensus—means lawyers and judges have a clearer understanding of the thinking of individual judges.
But they also might be left with uncertainty over whether disputes that have come before the court have been fully resolved.
“No one really views a dissent or an opposing opinion as a bad thing,” said DiFiore, who has herself authored four dissents this year, in an interview.
But, she added, a judge deciding to pen a dissent is a “decision that’s not made lightly and not made simply to express one’s particular view.”
As of Wednesday, the state’s high court has issued 97 rulings this year, in which 45 one or more justices issued dissenting opinions, up from 42 last year, DiFiore’s first full year as chief judge, according to figures compiled by Albany Law Professor Vin Bonventre, a longtime observer of the court.
The number of split decisions issued by the state’s high court in the DiFiore era has not yet reached the record-breaking number of dissents issued under her predecessor, Jonathan Lippman, who served as chief judge from 2009 until 2016: In 2014, Lippman’s court issued 81 decisions with dissent.
“We can reach consensus, and that’s a wonderful thing,” Lippman said in an interview with regard to his approach as chief judge. “But I think strong majorities and strong dissents are healthy, and I think the law revolves better in that motif.”
The latest numbers indicate that the judges of the DiFiore court are not under the same pressure to reach consensus in their rulings, as was the case when Judith Kaye presided over the court from 1993 to 2009, a time frame in which there was an average of about 25 decisions with dissent each year.
Additionally, the judges of the DiFiore court have issued rulings in unusual places, said Robert Rosborough IV, a partner at Whiteman Osterman & Hanna who is also regular observer of the court, citing an unprecedented event this year in which Judge Eugene Fahey issued a ruling alongside a decision by the court to deny leave to appeal for an animal rights group that’s fighting for habeas corpus for a pair of captive chimpanzees.
DiFiore “really has allowed the judges to do things that the court hasn’t done in its history,” Rosborough said.
DiFiore was reluctant to draw a direct comparison between herself and her predecessors—Kaye, who died in 2016, and Lippman, who is now of counsel to Latham & Watkins. But DiFiore, like Lippman, believes that dissents can help sharpen the arguments of the majority.
While DiFiore said the court doesn’t have an “appetite for dissent,” she also said the judges are not “dissent averse.” And the quality of the court’s work product may be enhanced by open debate.
“Of course unanimity is always valued, but it’s never exalted over the correct or right product,” she said.
While the seven judges’ votes have reflected ideological differences in their votes, they all have at least two things in common: They were all appointed by Gov. Andrew Cuomo and have less than six years’ experience on the high court.
Judge Jenny Rivera, who is generally viewed as occupying the court’s left ideological flank, is currently its longest-serving member—she was appointed in 2013.
Rivera and Judge Rowan Wilson, another of the court’s liberal members and who often bands together with Rivera in dissents, according to Bonventre’s analysis of court data, are the court’s biggest bomb-throwers when it comes to writing dissents: Wilson has authored 18 dissents this year, while Rivera has issued 14.
And Rivera and Wilson’s dissents from their colleagues can be lively and sharply-worded, observers note.
“I believe the court is charting a dangerous course, one that has the potential to render appellate judicial review meaningless, imperil individual liberty, and diminish civil rights,” Rivera wrote in for the two-judge dissent (she was joined by Wilson) in People v. Perez, disagreeing with the majority that New York City properly detained and searched a man who was carrying a machete and later convicted of using it in a robbery.
Rivera declined to be interviewed for this article, and a Court of Appeals spokesman declined to make Wilson available for an interview.
To be sure, writing dissents is not simply the provenance of the most liberal judges on a court that, according to Bonventre, leans slightly to the right in how it rules (his research found a pro-prosecution slant in the way that the court rules in criminal cases, but that it has been fairly balanced on civil cases).
Judge Michael Garcia, a former U.S. attorney for the Southern District of New York who was appointed to the post by President George W. Bush and has become one of the court’s most conservative judges since joining in February 2016, is currently in third place with eight dissents.
And breaking consensus isn’t just reserved for a few judicial firebrands: There have been 12 rulings this year in which the court found itself in a 4-3 split.
Lippman said the judges’ relatively short time together on the court may be a factor in the court’s apparent willingness to show its divisions on rulings.
“The court is finding its voice,” Lippman said. “This is a new court with different players, and it takes a while for everyone to feel comfortable and for everyone to fall into some pattern that makes sense.”
A unified court or a team of rivals?
The numbers indicate that DiFiore is continuing the dissent-friendly environment that Lippman fostered during his time as chief judge. But Bonventre said Lippman’s court seemed to carry an air of collegiality.
“Lippman didn’t take offense. That kind of set the tone for his court.” Bonventre said. “I think it’s the same for DiFiore.”
With regard to the fact that all the judges have been picked by the same governor, Bonventre said that Cuomo, a Democrat who tends toward centrist, has succeeded in picking a diverse array of ideological stripes to serve on the court
“He has not put left-wing clones on the court at all,” Bonventre said.
Kaye’s 16-year tenure as chief judge, on the other hand, was not always defined by a spirit of judicial—or political—goodwill.
Kaye was appointed by Cuomo’s father, Mario Cuomo, two years before Gov. George Pataki, a tough-on-crime Republican, took office.
Bonventre said that, in the early days of her tenure, Kaye had been steering the court in a more liberal direction. This drew the ire of Pataki, who publicly accused the court of pushing “irrational, mindless procedural safeguards for criminals” and said it put the rights of defendants over those of the victimized.
The public pressure appeared to push their jurisprudence: The court’s liberal-leaning judges, like Kaye, started casting fewer votes on behalf of the accused, and the court became more prosecution-friendly.
Around that time, Bonventre said, Kaye sounded the call to the state’s Appellate Division Department’s to try to limit the number of cases it sends up to the high court for further appeals—within the court, Kaye worked to achieve unanimity between the judges in the court’s rulings.
Kaye told the Times that she “landed on the side of unanimity, where possible, without compromising principles.”
And there is strength in unanimity, Bonventre wrote in a 2010 article discussing the Kaye court: Uanimous decisions can insulate individual judges from criticism, leading him to conclude that a chief judge who is under the political gun, as Kaye was during her tenure, might prefer to push for consensus.
“A divided opinion confirms that there is more than one way to decide a case,” Bonventre wrote. “It leaves the judges in the majority more exposed than in a unanimous decision to criticism that they got it wrong.”
The dissents started to tick back up near the end of Kaye’s tenure, however, and took off in the years to follow.
This summer, speaking at an Albany County Bar Association event about how the court assigns the writing of its majority and dissenting opinions, Judge Leslie Stein said that the dissenters often write opinions that never leave the court’s internal chambers, Rosborough writes in his blog on New York’s appellate courts.
The draft dissents are used to try and persuade the majority to narrow its focus, Stein said, and if the judges can all agree somehow on an opinion, the dissent is tossed out.
But when judges can’t find harmony on a ruling, she said, the dissent is issued with the majority ruling, offering the bench and bar a different view of the issues in a case. And a dissent can be used to indicate that a particular law needs to be changed.
Pointing to the example of Fahey’s concurrence in the court’s denial to take up the appeal by Nonhuman Rights Project, which is fighting to free chimpanzees Tommy and Kiko from captivity, Stein also said that concurrences could be used in the same way: Fahey argued that Tommy and Kiko’s case brought valid issues to the fore, but their case wasn’t the right one to examine them.
It is important for the court to speak with one voice, Rosborough said, for an attorney approaching a court that tends to move in lockstep, it may be a more of a “crapshoot” in terms of finding judges who see things your way.
What does it mean for attorneys to approach a court with judges who might be more likely to speak their minds than to seek consensus with colleagues?
Rosborough said that, with more judges making their thinking known, it may lead some attorneys who anticipate a split between the judges to structure their cases in such a way that they could convince judges to join their side.
“But in the end you’re going to think about the best way to present your case for your client and be persuasive,” he said.