Splinters in the 6-3 Supreme Court (Part 1: Amy Coney Barrett)

In the last few months, I've been busy with lectures (CLEs and other presentations) on the Supreme Court and the New York Court of Appeals. I thought I'd share here on New York Court Watcher some of what my research in preparation for the presentations revealed--or simply confirmed--about the Supreme Court. [I've previously shared much of what I found about changes at the New York Court in a host of earlier posts. See e.g., Part 6, Who's Dissenting?--NYCOA: The Wilson Uptick]

Let's start with Justice Amy Coney Barrett. Her appointment by former President—and now President-Elect Donald Trump—turned a previously 5-Conservative versus 4-Liberal balance on the Court into a 6-3 one. Her replacement of the deceased liberal Justice Ruth Bader Ginsburg had dramatic ramifications.

[Regarding the terms liberal and conservative, see below at *.]

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Yes, an ideological change was certainly to be expected in voting and in the Court's overall decisional patterns. The numbers show that the change, especially in voting, was indeed nothing short of drastic—for good or bad. Take a look at the following graphs.

This first one shows the politically conservative [see below at *] voting record of each Justice and the decisional record of the Court as a whole in the last term, 2019-2020, with Justice Ginsburg still on the Court.

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As shown, in cases where there was a clear politically conservative position on the issue and a clear politically liberal one, the Court's decisional record was virtually 50-50. Nevertheless, the division between the conservative and liberal Justices was stark. For example, the most moderate conservative Justice, Chief Justice Roberts, voted almost four times as conservatively as the most moderate liberal Justices, Kagan and Breyer.

At the extreme ends of the Court's political spectrum were Justices Alito and Thomas on the conservative side, and Justices Sonya Sotomayor and Ginsburg on the liberal one. Those two sides virtually never supported the politically opposite position.

Regarding Justice Ginsburg herself, she voted for the politically conservative position only 4% of the time. In other words, her record was 96 to 4, liberal to conservative.

Let's now take a look at the voting and decisional records for the very next year, the 2020-2021 term, with Justice Barrett in place of Justice Ginsburg. 

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As shown in this graph, the Court's decisional record was decisively more politically conservative than it was the year before—62% compared to 48%. The political division between the conservative and liberal Justices continued to be extremely stark—e.g., Roberts's 68% conservative voting to Kagan's 18%. 

And not surprisingly, the major difference was Justice Barrett. While Justice Ginsburg's record the year before was 4% conservative, her replacement, Justice Barrett's record was 76% conservative. So, the ideological voting by the Justice in that one seat on the Court changed from 4 to 76 percent politically conservative. The following graph, by juxtaposing some of the salient figures of the previous two graphs, makes clear just how dramatic that change was.

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As depicted in this graph, the ideological voting patterns of Justices Gorsuch and Kavanaugh--the other two Trump appointees--remained virtually the same from one year to the next. This is strong evidence that the ideological balance of the cases in the two years had not changed. It was the Ginsburg-Barrett seat that experienced ideological change--and an extraordinary change in the politically conservative direction it was. Again, 4% to 76% conservative.

That change, no doubt, was largely responsible for the 48% to 62% increase in the Court's conservative decision-making. To recap all of the foregoing briefly—and unsurprisingly—Justice Barrett's voting was much more politically conservative than her liberal predecessor, Justice Ginsburg, and, consequently, the Court's record became more conservative.

BUT.... And there's usually a "but."

Take a look at the Justices' voting record and the Court's decisional record three years later—the Court's last completed term, 2023-2024.

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The Court's ideological decision record was virtually identical to that of three years earlier. The same is true for the ideological schism between the three politically liberal and six politically conservative Justices. But Justice Barret's record was less conservative this past term.

In fact, her record was the least conservative of all the conservative Justices. Only 60% politically conservative. Or 40% politically liberal! In the next post, we'll take a look into some of that record.

*[The terms "liberal" and "conservative" are used here, as in judicial studies generally, to identify patterns, social and political, reflected in the decisions and votes of judges and the courts on which they sit. See e.g., my discussion, ‘Liberal’ Justices, ‘Conservative’ Justices, in  Supreme Shift: What the 6-3 Conservative Majority Means Going Forward, 93 NYSBA Journal 9 (Jan./Feb. 2021):

This is especially true and revealing when considered over the course of ideologically charged “hot-button,” issues. These are the issues where, for example, “conservative” Republican politicians and voters would typically support one position, while “liberal” Democratic politicians and voters would typically support the other.
"Anyone who follows politics and courts can surely identify a list of such issues. Among the most salient are those dealing with the separation of church and state, gun rights, LGBTQ rights, abortion, affirmative action, immigration, the death penalty, business regulation, and in recent years, just about anything involving [Donald] Trump.]

Part 6, Who's Dissenting?--NYCOA: The Wilson Uptick

Dissents, both opinions and votes, are particularly revealing. As I've explained numerous times on New York Court Watcher [See e.g., NYCOA: Criminal Appeals (Part 3)--Voting & Decisional Patterns (Mar. 13, 2019)] and elsewhere [See e.g., Great Dissents: 'Matters of High Principle' at the Court of Appeals, 94 N.Y. ST. B.J.  at 23 (Nov./Dec. 2022)]--and as judicial scholars have long understood--these open disagreements with the majority are invaluable in providing insights into the policies, principles, preferences, philosophies, etc. of the dissenters and of the court's majority. Choices have been made. These choices become apparent when the options are spelled out in the dueling majority and dissenting opinions. Beyond that, over a series of divided decisions, the choices made reveal patterns or, in Cardozo's phrase, "stream[s] of tendency."

These revelations, patterns, or "streams," are, of course, valuable not only to judicial scholars. They are also helpful, indeed indispensable, to lawyers who ought to understand the courts and judges before whom they are arguing. Likewise for citizens who wish to be informed about the same. And at least as vitally important, for the judges themselves who--as Cardozo, Holmes, and others among our finest jurists have recognized--are often unaware of their own leanings, deep-seated values and biases, and judicial philosophies.

Chief Judge Wilson
Credit: Ryland West/ALM

So, in identifying any transition at New York's highest court coinciding with the elevation of Rowan Wilson as Chief Judge, it might well be instructive to look at any changes in the Court's divided decisions. More specifically, to look at whether there have been changes in who is dissenting and what they are dissenting about. This would, of course, tell us whether there have been changes in who is in the majority and what choices the majority has been making.

Let's get to it.

Reviewing the Court of Appeals decisions over the past few years--concentrating on the latter years under Chief Judge Janet DiFiore through the just-completed first full year under Rowan Wilson--one rather startling change stood out. There has, indeed, been a remarkable change in who has been dissenting and, concurrently, in the choices regularly being made by the majority.

[N.B., this is emphatically NOT about the merits of the changes or about the comparative wisdom, equity, or quality of legal analysis in the dissenting or majority positions. To be sure, I have my own preferences and views. But this is about the facts--the data which, believe me, requires a considerable amount of tedious effort to collect. The Court does not make it easy!]

Judge Cannataro
Credit: Ryland West/ALM

Here it is: while Janet DiFiore was Chief Judge, then-Judge Rowan Wilson dissented regularly. Judge Anthony Cannataro never did. That's right, Wilson, whether writing his own dissenting opinions or joining a dissenting opinion of one of his colleagues, did so frequently. Cannataro, from his appointment to the Court in June 2021 through the last full year of DiFiore's tenure (Fall 2021 through Spring 2022), did not write or vote in dissent even once.

Here's the rest of it: since Wilson has been Chief Judge, Cannataro has been dissenting fairly regularly. In fact, through the first full year of Wilson's tenure as Chief Judge (Fall 2023 through Spring 2024), Cannataro has actually dissented more frequently than Wilson. Again, a startling turnaround.

Here's what that looks like:

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Whether or not this is a welcome development is not the point. Keep in mind that the issues in these appeals that result in divided decisions are close. There are usually strong arguments, legal and policy, on both sides. Unless one chooses to be ideologically blind or otherwise hopelessly biased, the fact is that the Court could legitimately have decided most of these cases either way.

The positions taken and the arguments made in the dissent might well have been the majority at another time with a different composition on the Court. One side might turn out to be wiser or fairer or more in line with the available legal materials. But those views are usually matters of personal or professional opinion and preference. 

Let's take a look at a few illustrative dissents--by Wilson during the final year of the DiFiore era, and by Cannataro during this just-concluded first full year under Wilson.

Even casual followers of the Court are aware of Wilson's dissenting opinion in Nonhuman Rights Project, Inc. v. Breheny (2022) where he disagreed with the majority's rejection of any liberty interest for Happy the Elephant, whose legal representatives sought habeas corpus to free her from the Bronx Zoo. Likewise, for Wilson's dissenting opinion in Harkenrider v. Hochul (2022), where he argued, among other things, that the statistical evidence that the majority relied upon to conclude that the redistricting at issue was unconstitutionally partisan was fatally flawed.

Other dissents display some rather consistent patterns in Wilson's decisional choices. For example, in Cutaia v. Board of Managers (2022), joined by Judges Jenny Rivera and Shirley Troutman, he argued that the worker, who was seriously injured on the job as a result of an inadequate ladder provided by the contractor, was entitled to summary judgment on his state Labor Law claim. Likewise, in Toussaint v. Port Authority (2022), again joined by Rivera and Troutman, Wilson sided with the worker who was seriously injured on the job when he was crushed by a "power buggy" being operated by an untrained driver, in violation of safety regulations of promulgated by the state labor department.

In illustrative criminal cases, Wilson dissented in People v. Dawson (2022), in an opinion joined by Rivera, arguing that the defendant's waiver of Miranda rights, in the absence of counsel which he had requested, was a violation of the Court's traditionally scrupulous protection of due process, the right to counsel and against self-incrimination. And in People v. Ibarguen (2021), again joined by Rivera, argued that the defendant had standing to challenge the warrantless entry and search of his friend's residence where he was a dinner guest.

Several other Wilson dissents, in both civil and criminal cases, share the same inclinations to side with injured workers and to rigorously safeguard the rights of the accused.

As for the Cannataro dissents during Wilson's first full year as Chief Judge, most observers of the Court are aware that he dissented in People v. Weinstein (2024), arguing that the majority erred in holding that the evidence of uncharged misconduct was illegally admitted to prove the defendant's criminal propensity. And in Hoffmann v. New York State Independent Redistricting Commission (2023), he disagreed with the majority's ruling that the urgent redistricting ordered by the DiFiore Court in Harkenrider, to be done by the trial court, was only an interim measure.

Other dissents, like those of Wilson, reveal some common denominators. For example, in Brookdale Physicians v. NYC Department of Finance (2024), in an opinion joined by Judges Michael Garcia and Madeline Singas, he sided with the building owner against the city finance department, arguing that the revocation of the building's tax-exempt status, on the ground that the tenant was a for-profit corporation, was arbitrary and capricious. And in Tax Equity Now v. City of New York (2024), he authored a separate dissenting opinion, disagreeing with the majority's holding that the complainants had sufficiently pleaded a cause of action, under the state's Real Property Tax Law, that the city's property tax system was unfair and favored wealthy residents.

In criminal cases, the common threads are even sharper. For example, in People v. Telfair (2023), in an opinion joined by Garcia and Singas, Cannataro disagreed with the majority's ruling that the evidence of prior bad acts by the defendant constituted inadmissible proof of criminal propensity. In People v. Brown (2023), in an opinion again joined by Garcia and Singas, he disagreed with the majority's ruling that it was a violation of due process to designate the defendant as a sex offender for a robbery, which lacked any sexual act or motive, merely because it took place in the presence of a child.  And in People v. Cuencas (2023), in another dissenting opinion joined by Garcia and Singas, he argued that the majority wrongfully decided that warrantless police entry into the suspect's home was unreasonable because the lower court's "mixed question" determination was to the contrary.

Cannataro's dissents, these few discussed and others, evince inclinations to side with the rights of property and business owners and to be skeptical about seemingly technical obstacles to criminal law enforcement.

Let's conclude with this observation. In all of these cases, whether they involved Wilson or Cannataro dissenting, they were on opposite sides. The positions embraced by Cannataro always coincided with those of the majority while DiFiore was Chief Judge. In the Wilson era, however, the dynamics are different. Indeed, the positions taken by Cannataro coincide with those of the majority less frequently than do those of Wilson--whose positions in the DiFiore era were regularly at odds with the majority.

No doubt about it, there has been a transition at the Court of Appeals, not only in the center seat but also in the Court's general decisional outcomes.

Part 5, More on Caseload and on Criminal Appeals--NYCOA: The Wilson Uptick

The Court of Appeals remains the focus for now. Yes, dramatic developments at the Supreme Court should and will be addressed. Meanwhile, remember that for New Yorkers, our lives under the law are much more directly and regularly affected by the rulings of our highest court--just as they are for residents of other states and their high courts.

This post will be a review of sorts. We'll look at some of the same matters we did previously in this series, but with some more complete, supplementary data.

Credit:Tania Savayan.Westchester Journal News

In Part 1 of this series, we saw that the Court's overall caseload was already increasing in the very first few months of Rowan Wilson's tenure as New York's Chief Judge. In Part 2, we saw the same when considering only criminal appeals. In Part 3, we saw that the number of criminal appeals calendared continued to increase over the next few months. In Part 4, we compared the caseloads for the first full year of  Wilson's tenure with those of some previous years.

Let's now look at some similar comparisons, again with some supplemental and somewhat different data.

As noted previously, the State Bar News reported that Wilson made clear, at the 2024 Annual Meeting, that he believed that New York's highest court "must dramatically increase its caseload to regain its stature." [https://nysba.org/state-bar-news-annual-meeting-2024/#dflip-df_163552/23/ at 23.] Indeed, he has made no secret about those sentiments and has repeated them frequently. 

To anyone who has been following the Court and, more specifically, the contrast among the Judges in how frequently they have been granting CLAs (Criminal Leave Applications), Wilson's views on the subject should be no surprise. [Recall, the decision to allow a criminal case to be reviewed by the Court is made by the one Judge to whom the CLA was randomly distributed. No other Judge participates in that decision.] Wilson consistently granted the most CLAs of any Judge on the Court during the years when Janet DiFiore was Chief Judge, and he continues to do so.

Let's take a look:

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Considering the two ends of the Court's CLA-granting spectrum during the DiFiore era makes pretty clear which Judges were deciding to afford review of criminal cases by the Court most frequently, and which Judges the least so. Rowan Wilson and Jenny Rivera were the most generous in granting CLAs, and Janet Difiore and Michael Garcia the least so.

Regarding then-Judge Wilson, he granted CLAs the most frequently of any Judge on the Court and far more frequently than DiFiore and Garcia. The result? If a party seeking to be heard at the Court of Appeals had their CLA distributed to Wilson, there was a far greater chance of having their application granted. If their CLA was distributed to DiFiore or Garcia, the chances of getting a hearing at the Court were minimal. [The manifest unfairness of this state of affairs has been a source of much debate about whether to change the CLA process. See e.g., former Judge Eugene Pigott's Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Albany Law Review 169 (2021-2022).]

The contrast in the CLA-granting figures among the Judges was much the same for the next two calendar years--i.e., for 2022 through 2023, the most recent full calendar years. Let's take a look:

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The composition of the Court had changed by the time of these calendar years. Chief Judge DiFiore left the Court in mid-2022. Judges Madeline Singas and Anthony Cannataro were both appointed in mid-2021 and, so, they were on the Court throughout 2022 and 2023. Judge Shirley Troutman was appointed in early 2022 and participated in CLA decision-making throughout 2023. (The figure for Troutman reflects only 2023.) But notwithstanding the compositional changes at the Court, the CLA-granting spectrum was similar to that of the preceding years. Some Judges were granting significantly more than others.

As in those previous years, Judge Garcia granted the fewest CLAs. Now-Chief Judge Wilson granted the most. To put the contrast in perspective, consider that a party that sought review by the Court of Appeals had a nearly eight times better chance of having their CLA granted if it was distributed to Wilson than if their application were to be decided by Garcia. A party would have a more than three times better chance with Wilson than with Singas or Cannataro.

Has Wilson's obvious preference for the Court to accept more cases to review been reflected in the caseload since he was elevated to be Chief Judge? For now, let's keep our focus on criminal appeals. (For additional perspective, I've included the final Fall to Spring year under Chief Judge Jonathan Lippman.) Take a look:

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As we've seen previously, the number of criminal appeals calendared under Chief Judge Wilson--Fall 2023-Spring 2024--increased significantly from the number calendared in the previous years. This is true for the period while Difiore was Chief Judge and while Cannataro was Acting Chief. Fifty-one calendared criminal appeals to an average of twenty-nine. To be sure, that's still considerably fewer than the eighty-two criminal appeals calendared under Lippman. But it is a substantial 75% increase from the immediately preceding years before Wilson was Chief.

Not surprisingly, an analogous development has been taking place for total appeals calendared--both civil and criminal. Take a look:

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The total appeals calendared at the Court under Chief Judge Wilson has increased similarly. An almost 50% increase from what the numbers had been in the immediately preceding years. Again, the caseload thus far in the Wilson era does not (yet?) approximate that under Chief Judge Lippman. It is still much lower than it was under Lippman--i.e., 180 in Lippman's final Fall to Spring year. But the increase of at least 30 appeals under Wilson, from what it was when DiFiore was Chief Judge and Cannataro was Acting Chief, is hardly insignificant.

Notably, there has been no decrease in civil appeals calendared under Wilson in order to keep the total number of appeals down to where it had been in the immediately previous years. Simple arithmetic--subtracting the number of criminal appeals calendared from the number of total appeals--tells us that.  The number of civil appeals calendared in the years immediately preceding Wilson's elevation to Chief Judge averaged about 40. In the first full year of calendaring under Wilson, there were over 50 calendared civil appeals. The Court's caseload is growing--period.

Where the caseload at New York's highest court goes from here is anyone's guess. But a good guess is that the caseload, both criminal and civil, will continue to be quite higher than it was before Wilson became Chief. He has left no doubt that he believes the Court's stature demands that, and that New Yorkers' worthy cases deserve that.

Next up--yes, finally--who's dissenting now!

Part 4, Update and More on Criminal Appeals--NYCOA: The Wilson Uptick

In Part 1 of this series, we looked at the first 4 months of Rowan Wilson's tenure as New York's Chief Judge and saw a 45% increase in total appeals calendared over the corresponding period the previous year. In Part 2, we saw that the number of criminal appeals calendared had actually doubled. In Part 3, we saw that the number of criminal cases calendared continued to increase dramatically through the next 3 months--nearly double the number for the same 7 months the previous year.

        (click to enlarge for a better view) 

Former Chief Judge Lippman with Chief Judge Wilson
at the 2024 Lawrence Cooke Symposium,
Albany Law School, April 25

(Several graphs in those previous posts depicted the comparisons of the early-Wilson era with that of the pre-Wilson months and with the corresponding months of Chief Judge Jonathan Lippman's final year. In short, criminal appeals rose sharply under Wilson, but not nearly at the level when Lippman was Chief Judge. 

The graphs also depicted Wilson's record of granting CLAs [Criminal Leave Applications] as the highest on the Court, both before and after he became Chief Judge. But, again, Wilson's record is still far below that of several members of the Court when Lippman was Chief Judge--including that of Lippman himself.) 

Let's now look at the caseload for the first full year of calendars with Wilson as Chief Judge. This would include the cases calendared for the Court's sessions from September 2023 until the Court's coming summer break this year.  And let's compare that to the caseloads of the corresponding previous full year of calendars--all set prior to Wilson becoming Chief Judge--and the corresponding full year of calendars during Lippman's final year before mandatory retirement. Here's what that looks like:

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As shown in the graph, total criminal appeals calendared in the first full Wilson year increased significantly over the previous year--76% increase. Despite this increase, however, the number is still far smaller than during the corresponding fall-to-spring term while Lippman was Chief Judge. To be clear, the point is not the more the better or that there is some ideal number. What is clear, however, is that the Court's criminal caseload did drop rather drastically from what it was in the Lippman era, and that the caseload is now increasing--if not as dramatically, certainly significantly.

As for the total number of cases calendared, civil as well as criminal, the roller coaster is similar. Take a look:

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As depicted in the graph, the total number of appeals calendared at the Court had dropped to less than one half--only 39% --of what it was under Lippman. In the first full fall-to-spring year under Wilson, the caseload has increased 47%. Still, it is a long way from the Lippman caseload, but unmistakenly a considerable rise.

This increase under Wilson is not surprising. He has made clear his belief that New York's highest court should be hearing more cases as part of "returning the court to its former glory. 'I would like to get back to that,' he said." [State Bar News/Annual Meeting 2024.]

He expressed similar sentiments at the Chief Judge Lawrence Cooke Symposium at Albany Law School last month. [The Eminence and Experience--and Exhaustion--of Being New York's Chief Judge, April 25, 2024. (See photo above.)]

Beyond that, regarding the criminal cases, Wilson's record for granting CLAs [Criminal Leave Applications] has rather consistently been the highest on the Court. It was so, for example, in the last two years of the Court under his predecessor, Chief Judge Janet DiFiore. Take a look:

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As shown on the graph, Wilson's average of granting 8.5 CLAs each year was the highest in the final years of DiFiore's tenure.

(Notably, among the five Judges who were on the Court for the entirety of those last two years, the contrast was stark: from Wilson's 8.5 to DiFiore's and Garcia's 1.5. Obviously, those parties whose CLAs were assigned to Wilson were far more fortunate than those assigned to DiFiore or Garcia.)

Wilson's record for granting the most CLAs--and the stark contrast among the Judges--continued after DiFiore left the Court. Here is what the first post-DiFiore year looked like:

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Once again, Wilson's record for granting CLAs was the highest among the Judges.

(Notably also, both his record and the Court's average jumped quite a bit in that immediate post-DiFiore year. Judges Rivera's, Cannataro's, and Troutman's records all contributed to the doubling of the Court's average. And as was the case while DiFiore was Chief Judge, the contrast among the Judges' records remained quite extraordinary. From Wilson's high of 17 CLA grants to Garcia's 1. Again, parties whose CLAs were assigned to Wilson--or to Rivera, Cannataro, or Troutman--had a much better chance for the opportunity to have their cases reviewed by the Court than if their CLAs were assigned to Garcia. This imbalance, the result of the single-Judge CLA decision-making process, has been the subject of much criticism. See, e.g., Eugene F. Pigott Jr., Criminal Leave in the Court of Appeals a Case of Implicit Bias?, 85 Albany Law Review 169 [2021-2022])

To continue the aside about the imbalance resulting in CLA-granting records, it should be made clear that this is not a recent phenomenon--not a result of Janet DiFiore being Chief Judge or of her departure. This has been a long-term feature of the single-Judge CLA decision-making process. For example, the contrast was just as great while Judith Kaye was Chief Judge. Take a look:

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As depicted in this graph [from (Part 3) NY Court of Appeals: Criminal Leaves Still Up & Still Uneven.], among the Judges who were on the Court for the entire last two years of Kaye's tenure as Chief Judge, the CLA-granting records ranged from Pigott's annual average of 11 to Read's average of 1.5.  As for the Court as a whole, CLA grants then doubled in the following years under Chief Judge Lippman from what it had been under Kaye. Here's a look at Court averages for total CLA grants over the years:

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As depicted in this graph [from NY Court of Appeals: Steep Cut in Criminal Cases (part 2).],the CLA grants during both the Wachtler and Lippman eras at the Court were double that of the latter 10 years of the Kaye era.

This is a long way of saying that, regarding CLA grants, there has been a contrast among the Chief Judge tenures just as there has been among the individual Judges themselves. With the criminal caseloads now increasing under Wilson, and his consistent record of granting the highest--or one of the highest--numbers of CLAs among the Judges, there is good reason to believe that parties seeking appeals in criminal cases will have an increased opportunity to have their cases heard by New York's highest court with Wilson as Chief Judge.

In the next post, we'll look at a significant change--actually a turnaround--in who's now dissenting at the Court of Appeals.

Being Chief Judge with Rowan Wilson and Jonathan Lippman

The Eminence and Experience

--and Exhaustion--

of Being New York's Chief Judge

The 14th Annual Chief Judge Lawrence H. Cooke Symposium

Albany Law School, April 25, 2024