Fordham Law


Dissenting Often, State’s Chief Judge Establishes a Staunchly Liberal Record

Bruce Green in The New York Times, October 09, 2011

Media Source

By WILLIAM GLABERSON

After he was appointed to head the Court of Appeals in 2009, New York’s chief judge, Jonathan Lippman, drew attention by forging alliances to get more liberal rulings on the court, which has a 4-to-3 conservative majority. But a new analysis shows another side of his approach: Judge Lippman writes dissents from his own court far more than his predecessors did from their courts.

In those dissenting opinions, he always takes staunchly liberal positions, regularly refusing to compromise on subjects like the rights of criminal suspects and the injury claims of plaintiffs. Last October, a 4-to-3 majority permitted the courts to rely on a confession to sexual abuse that a 13-year-old gave after a police officer asked his mother to leave the interview. But to Judge Lippman, this was a “tired and hungry child isolated in the middle of the night” who might have confessed to anything.

In approving a search warrant in a case in January, the majority, he said, was giving prosecutors “a net far more capacious than the law allows.” In June, he said the court sided against a woman who said she had been injured in a public parking lot because of nothing more than “a judicial aversion to municipal liability.”

The dissents show a chief judge positioning his losing-side views to try to influence cases years from now, said Vincent M. Bonventre, an Albany Law School professor, who described new research he had compiled.

“He is making a record,” Professor Bonventre said. “He is spelling it out, and in the future when a similar issue arises, that court is going to decide who got it right.”

The Court of Appeals, in Albany, has at times been among the most influential state courts in the country. Professor Bonventre, a leading scholar on the court, said Judge Lippman, 66, was writing dissents at triple the rate he did when he first took the bench.

For the year ending in June, Judge Lippman wrote dissents in 15 cases — tied with a conservative judge, Robert S. Smith, as the author of the most dissents on the court. That is sharply more than his two predecessors as chief judge, who wrote about one or two dissents a year.

Those dissents spell out positions that make Judge Lippman the most liberal New York chief judge in more than 25 years, said Professor Bonventre, who has published some of his research on his legal blog, New York Court Watcher.

Some lawyers and law professors said the dissenting opinions laid out a clear judicial philosophy, while others said they may reveal the frustrations of a liberal leading a court with a conservative majority.

“It suggests he may have little influence as an intellectual leader behind the scenes, and so hopes to exercise influence through his public voice,” said James A. Gardner, a professor and vice dean at the University at Buffalo Law School.

Judge Lippman declined to be interviewed for this article. He has publicly said that he differed from the leadership approach of his immediate predecessor, Judith S. Kaye. She has publicly said she worked for unanimity on the court, when possible. “I am a result-oriented person,” Judge Lippman said in an interview last year, “and the result I am looking for is not necessarily unanimity.”

His increasing willingness to dissent seemed to be a logical next step in his leadership, said Bruce Green, a Fordham Law School professor. Professor Green noted that losing judicial arguments often became the basis for later legal changes by legislatures or courts.

“The message I get” from Judge Lippman’s dissents, Professor Green said, “is, ‘You’re put on the court to be your own person and to express your views, and I’m going to do it.’ ”

The 15 dissents Judge Lippman wrote last year offer a glimpse of fervent disagreements on the court. Professor Bonventre’s studies show that Judge Kaye wrote dissents an average of only 1.4 times annually for the 16 years she was chief judge, and that her predecessor, Sol Wachtler, wrote dissents an average of 1.9 times a year for his eight years.

Court statistics show that changes Judge Lippman has brought to the court have lasted. In Judge Kaye’s final year, 82 percent of the decisions were unanimous. Last year the unanimity rate slipped to 67 percent.

Some lawyers say that by avoiding compromise, the court’s majority rulings are clearer because they do not need to be softened to win votes. But some lawyers say Judge Lippman simply may not be able to control the other judges on the court. “One possibility,” said Richard Briffault, a Columbia Law professor, “is that he’s not as good at getting compromise as Judge Kaye was.”

But Professor Bonventre, who has been studying the court for 30 years, sees a more strategic explanation for Judge Lippman’s unusual decision to make public his disagreements with his own court. “The rest of the court knows,” he said, “that if they go too far afield from his point of view, he is going to go public.”