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The dynamics of state constitutional decisionmaking: judicial behavior at the New York Court of
Appeals
Luke Bierman
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THE DYNAMICS OF STATE CONSTITUTIONAL
DECISION-MAKING: JUDICIAL BEHAVIOR AT
THE NEW YORK COURT OF APPEALS
Luke Bierman*
Although scholars continue to refer to its infancy,' the "New Judicial
Federalism" is rapidly approaching maturity. Indeed, the genre's most ardent analysts recognize that judicial federalism "isn't new anymore."'2 As the
enthusiasm that initially sustained judicial federalism wanes, informed observers recognize that the focus of scholarly investigation of state constitutionalism must be broadened if the subject is to move forward in an
3
intelligent and useful fashion.
This article is meant as a contribution to the expansion of our thinking
about state constitutional decision-making. Rather than focus simply on doctrinal analysis of how state high court judges approach and interpret state
constitutions, this article examines state court decision-making from the perspectives offered by the rich literature of judicial voting behavior. Specifically, this article considers how the judges of the New York Court of Appeals
exercise their individual prerogatives in resolving cases. By looking at voting
preferences, patterns, and alignments in different categories of cases, including state constitutional cases, one can identify the influences and motivations
affecting voting behavior. From this examination, a broader understanding
of the dynamics involved in decision-making under the so-called "New Judicial Federalism" is possible.
* Visiting Specialist in Constitutional Law and Civil Liberties, The Richard Stockton College of New Jersey; B.A., Colgate University; J.D., Marshall-Wythe School of Law of the College
of William and Mary; M.A., Ph.D., State University of New York at Albany. This article is
adapted from a chapter of the author's doctoral dissertation. The author would like to thank
Professors Stephen L. Wasby and Vincent M. Bonventre for thoughtful criticism in initial drafts
of this article, and Christine Kenefick for coming through in a pinch with research assistance, as
she always does.
1. See, e.g., Michael Esler, State Supreme Court Commitment to State Law, 78 JUDICATURE
25, 25 (1994) (arguing that extent to which state courts rely on own constitution is overrated).
2. Ronald K.L. Collins, Reliance on State Constitutions-Beyondthe New Federalism, 8 U.
PUGET SOUND L. REV. vi, vi (1985).
3. See, e.g., G. Alan Tarr, ConstitutionalTheory and State Constitutional Interpretation, 22
RUTGERS L.J. 841, 861 (1991) (reviewing constitutional bases for judicial review of regulatory
practices in Oregon).
1403
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APPROACHES TO JUDICIAL DECISION MAKING
Although the influence of the states as "laboratories" for developing social and economic policy has long been recognized, 4 the importance of state
courts to constitutional development has been slower in gaining recognition.
Of course, state courts have rendered decisions on state grounds, including
state constitutional grounds, since the American Revolution, 5 but only in the
last half of the twentieth century has significant attention been paid to the
state constitutional phenomenon. 6 Having gained popularity as a mechanism
for protecting individual rights and liberties at a time when the U.S. Supreme
Court was less protective of those rights, state constitutionalism has generated substantial scholarly interest and concern.
The fact that the "New Judicial Federalism" has actually been less protective of individual rights and liberties than generally believed 7 has not undermined the importance or growth of state constitutionalism. State courts
have remained an important concern for several reasons. The bulk of litigation occurs in state courts, providing numerous opportunities for innovative
state law, including state constitutional claims. Not surprisingly, state courts
have utilized state constitutional provisions to effect public policy development in such diverse areas as education, welfare, civil justice, and civil liberties. 8 The breadth of state court constitutional decision-making makes the
importance of these courts apparent.
The failure of state courts to develop principled approaches or foundations to state constitutional interpretation, however, has raised concerns
within the scholarly community. 9 Among the more perceptive and knowl4. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1931) (Brandeis, J.,
dissenting) (recognizing that state choosing to act as laboratory for experimentation is "happy
incident").
5. See, e.g., Vincent M. Bonventre, State Constitutionalismin New York: A Non-Reactive
Tradition, 2 EMERGING ISSUES ST. CONST. L. 31, 35 (1989) (discussing long tradition of independent decision-making by state).
6. Former Oregon Justice Hans Linde generally is conceded to have sparked attention to
state constitutional adjudication. See, e.g., Hans Linde, Without "Due Process": Unconstitutional Law in Oregon, 49 OR. L. REV. 133, 153 (1970) (reviewing constitutional bases for judicial
review of regulatory policies). However, the more practical concern over "the Burger Court's
perceived hostility to Warren Court activism and its extension" has led to the growth in attention
to state constitutionalism. Earl Maltz, The PoliticalDynamism of the "New Judicial Federalism",
2 EMERGING ISSUES ST. CONST. L. 233, 235 (1989). See also William J. Brennan, State Constitutions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 489 (1977) (arguing that
federal law must not be allowed to inhibit independent protective forces of state law).
7. Barry Latzer, The Hidden Conservatism of the State Court "Revolution", 74 JUDICATURE
195, 195 (1991).
8. See generally A.E. Dick Howard, The Renaissance of State ConstitutionalLaw, 1 EMERGING ISSUES ST. CONST. L. 1, 12 (1988) (discussing how state constitutionalism has affected areas
of economic regulation, separation of church and state, criminal procedure, environment, and
gender discrimination).
9. See, e.g., Vincent M. Bonventre, New York's Chief Judge Kaye: Her Separate Opinions
Bode Well for Renewed State Constitutionalism at the Court of Appeals, 67 TEMP. L. REV. 1163,
1163-64 (1994) (evaluating appointment of Judge Kaye to improve ailing court's state constitutional decision-making); Peter J. Galie, Modes of ConstitutionalInterpretation: The New York
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edgeable critics of the development of state constitutional interpretation, G.
Alan Tarr recently has recognized the inadequacies of a "result-oriented" approach to state constitutional decision-making. 10 Tarr argues forcefully that
state courts need to develop "a principled state constitutional jurisprudence"
in order to bring greater understanding and legitimacy to state constitutionalism." Rejecting the prevalent use of text-based interpretivism for state constitutional provisions as too similar to federal constitutional jurisprudence
despite different historical and philosophical bases, Tarr suggests that better
understanding of state constitutional law will come only from "more sustained reflection about the nature of state constitutions and through a dia'12
logue with scholars outside the field of state constitutional law."
Of course, jurisprudential choices and ideological approaches form the
bases for most doctrinal analysis of judicial behavior. Judicial process scholars from all fields, however, recognize the judicial decision-making process as
a complicated undertaking that implicates more than just doctrinal interpretation. These scholars acknowledge that the way in which a judge's vote is
exercised, with its accompanying explanation as expressed in an opinion, is a
fundamental expression from which we can learn much about the beliefs and
roles of those serving on a court. In other words, a judge's voting behavior
can serve as a window to the motivations underlying the judicial decisionmaking process. Tapping into this expressive conduct for explanatory purposes would seem especially appropriate to elucidate the developing area of
state constitutionalism.
Recognizing the importance of a judge's vote, judicial process scholars
interested in judicial behavior have tended to concentrate their attention on
judges' voting practices. For example, the nature of an appellate court's jurisdiction can affect such voting behavior as dissent rates and patterns. The
capacity of an appellate court's leader to exert various forms of leadership
can change a court's voting preferences and patterns. Judges' ideologies and
capacities to influence colleagues to accept their views relate to how judges
vote. A court's "standard operating procedures" and its judges' perceptions
about them contribute to the way in which votes are exercised. The judges'
backgrounds and experiences also affect voting behavior. By drawing on the
rich literature devoted to judicial voting behavior, we can use these various
approaches to assess judges' voting preferences and patterns and thereby determine their motivations and influences when deciding cases. Focusing this
Court of Appeals' Search for a Role, 4 EMERGING ISSUES ST. CONST. L. 225, 248 (1991) (raising
concerns regarding state courts' unwillingness to dissociate from federal law); James A. Gardner,
The Failed Discourse of State Constitutionalism,90 MIcH. L. REV. 761, 766 (1992) (arguing failure of state constitutional discourse results from failure of internally inconsistent state constitution itself); Tarr, supra note 3, at 842 (describing concerns regarding lack of dialogue between
constitutional theorists and constitutional scholars).
10. Tarr, supra note 3, at 842.
11. Id.
12. Id. at 861.
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effort on cases raising state constitutional issues provides greater insight into
what has been called the "New Judicial Federalism."
The relationship between discretionary jurisdiction and lack of consensus in resolving cases is apparent from the trend away from unanimity at the
U.S. Supreme Court following enactment of the Judges' Bill of 1925.13 The
ability to choose cases with important and divisive issues helped to define the
Supreme Court's role and its justices' habits during this century. The most
frequent dissenters in Supreme Court history hail from this period, with
Justice Douglas well-recognized for his prodigious number of dissenting votes
and opinions. 14 The prevalence of dissents by those at ideological extremes,
such as Justices Brennan, Marshall, and Rehnquist, also has been
recognized. 15
Although the most famous of the Supreme Court dissenters, those
known as the "Great Dissenters" such as Justices Holmes and Brandeis, developed their reputations at a time when the Court's mandatory jurisdiction
seems effectively to have diminished the number of dissents, the frequency
and rates of their dissents are far below those of the more prolific dissenters
of more contemporary times. 16 This suggests that the frequency of dissent
should not be confused with the tenor, content, and ultimately, the effectiveness of the dissent.
This suggestion, that the quality rather the quantity of dissents may affect how others perceive the effectiveness of the dissenter's position, raises
the possibility that certain judges can exert influence over others. This "ability to persuade or convince another of the correctness of one's opinions" will
reveal whether particular judges played more influential roles than others in
the dynamics of an appellate court. 17 For example, Spaeth and Altfeld found
that the justices on the Warren and Burger Courts exerted little influence on
each other through their dissenting and concurring opinions, although justices of similar ideological preferences were more likely to be influenced by
each other.' 8
Related to the possibility of influencing colleagues' votes through separate opinions is the opportunity to affect voting behavior by exerting judicial
leadership. A variety of leadership roles have been identified as contributing
to a chief justice's ability to marshal the Court's resources and, ultimately, its
13. See generally Stephen C. Halpern & Kenneth N. Vines, Institutional Disunity, the
Judges' Bill and the Role of the U.S. Supreme Court, 30 W. POL. Q. 471, 472 (1977) (examining
ways Judiciary Act of 1925 influenced new norms in dissenting behavior).
14. DAVID M. O'BRIEN, STORM CENTER 340-42 (3d. ed. 1993); STEPHEN L. WASBY, THE
SUPREME COURT IN THE FEDERAL JUDICIAL SYSTEM 243 (4th ed. 1993).
15. WASBY, supra note 14, at 243-44.
16. O'BRIEN, supra note 14, at 341.
17. Harold J. Spaeth & Michael F. AItfield, Influence Relationships Within the Supreme
Court: A Comparison of the Warren and Burger Courts, 38 W. POL. Q. 70, 70 (1985).
18. Id. at 82 (formulating measures of influence independent of effect on power and leadership in Supreme Court); see also Michael F. Altfeld & Harold J. Spaeth, Measuring Influence on
the U.S. Supreme Court, 24 JURIMETRICS J. 236, 244-47 (1984) (analyzing influence of Supreme
Court justices on each other).
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members' votes. Task leadership requires control over the Court's workload
and procedures, with social leadership requiring attention to the diverse
needs and relationships among strong-willed, successful individuals. 19
The chief justice, as the first among equals, has been afforded a variety
of tools to effect these leadership roles on the U.S. Supreme Court. For example, the chief justice compiles the "discuss list" and leads conference discussions, affording important opportunities to set the Court's agenda and to
persuade others. 20 Opinion assignments offer another useful means by which
the chief justice can provide leadership; justices' votes as well as public opinion may well turn on the tenor of a written opinion, which is related to the
21
way the chief justice handles voting responsibilites.
Although some have seized these opportunities for leadership, not all
chief justices have successfully risen to the occasion to serve as effective and
persuasive leaders.22 Chief Justices Taft and Hughes, for example, have been
acknowledged as strong leaders, moving the Court's practices and doctrine in
desired directions. Likewise, Chief Justice Warren's ability to craft a unanimous opinion in Brown v. Board of Education23 is but one example of his
'2 4
unique leadership skills, which earned him recognition as "Super Chief."
On the other hand, Chief Justice Burger's lack of doctrinal consistency and
failure to master certain administrative tasks expected of the chief justice
25
inhibited his ability to marshal votes.
In attempting to seize the opportunities for leadership presented, it is
not unusual for a chief justice to enlist the assistance of other justices. For
example, Justice Van Deventer's intellectual leadership complemented Chief
Justice Taft's social graces. Chief Justice Warren's social leadership is well26
recognized, and he relied on Justice Brennan for task and policy assistance.
William Rehnquist, as Chief Justice, softened his conservative rhetoric to
function more effectively in the center chair,2 7 while Justice Scalia, later
19. David J. Danelski, The Influence of the Chief Justice in the Decisional Process, in
COURTS, JUDGES, AND PoLiTIcs 695 (Walter Murphy & C.H. Pritchett eds., 4th ed. 1986).
20. See, e.g., Gregory A. Caldeira & John R. Wright, Organized Interests and the Discuss
List in the Supreme Court (Paper Presented at the 1988 American Political Science Association
Annual Meeting).
21. See, e.g., Sue Davis, Power on the Court: ChiefJustice Rehnquist's Opinion Assignments,
74 JUDICATURE 66, 67 (1990) (discussing Chief Justice's power in assigning majority opinions to
other justices).
22. See generally O'BRIEN, supra note 14, at 239-43, 277-84 (describing process of judicial
conferences).
23. 347 U.S. 483 (1954).
24. See generally BERNARD SCHWARTZ, SUPER CHIEF: EARL WARREN AND His SUPREME
COURT (1983) (examining career and impact of Chief Justice Warren on Supreme Court).
25. See generally BOB WOODWARD & SCOTT ARMSTRONG,THE BRETHREN (1979) (analyz-
ing inner-workings of Supreme Court from 1969 to 1976).
26. See, e.g., O'BREN, supra note 14, at 297 (discussing Justice Warren's reliance on Justice
Brennan when planning conferences).
27. See Frank Guliuzza III, ProtectingJudicial Leadership: Did Rehnquist Prefer To Switch
than Fight?, 29 WILLAMETTE L. REV. 151, 157 (1993) (examining Rehnquist's role as dominant
conservative voice on Supreme Court).
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joined by his usual voting partner Justice Thomas, 28 provided the conservative salvos that characterized Rehnquist's opinions as an Associate Justice.
The development of a centrist coalition of Justices O'Connor, Kennedy, and
Souter for at least some doctrinal issues2 9 also reveals that it is not only the
chief justice who can marshal the Court's votes to lead it in a particular way.
At the New York Court of Appeals, the chief judge's leadership has
been seen as particularly influential to the court's reputation, if not direction.
Benjamin Cardozo's reputation as a leading common law jurist helped bring
national attention to the court of appeals during the early part of the century.
The court's progressive views in protecting civil rights and liberties as a matter of state law were enhanced under the leadership of Chief Judges Stanley
Fuld (1967-1973) and Lawrence Cooke (1979-1984).3 0 As chief judge,
Charles Breitel (1974-1978) pushed his colleagues to meet high standards in
what has been characterized as "rough fondling," and his tenure saw important administrative reform at the court. 3 1 Sol Wachtler, appointed chief
judge in 1985, was described in 1990 as a "dominant force,"' 32 with
the court
33
taking on his " 'cordial, pragmatic and intelligent' " personality.
There has been other evidence of the chief judge's influence on the court
of appeals during the 1980s and 1990s. Bonventre has suggested that Chief
Judge Sol Wachtler in the late 1980s led the court to retreat from its traditional progressive views in protecting civil rights and liberties under the state
constitution, 34 despite extrajudicial writings of several members of the Wach28. See Christopher E. Smith & Scott P. Johnson, The First-Term Performance of Justice
Clarence Thomas, 76 JUDICATURE 172, 173 (1993) (noting frequency of Justice Thomas voting
same as Justice Scalia during first term).
29. Id.
30. See Bonventre, supra note 5, at 45, 48 (discussing Judges Fuld & Cooke's respective
roles in protecting civil rights through state law); Peter J. Galie, State ConstitutionalGuarantees
and Protectionof Defendants' Rights: The Case of New York, 1960-1978, 28 BUFF. L. REV. 157,
167 (1979) (discussing Judge Fuld's role in deciding Marsh case limiting powers of police in
search and seizure during traffic stop); see also Akel v. New York, 81 S.Ct. 25, 26 (1960) (referring to Judge Fuld as "solicitous" of claims to civil rights and liberties); Feiner v. New York, 340
U.S. 315, 288 (1951) (Frankfurter, J., concurring) (asserting that New York Court of Appeals is
hospitable to claims involving civil liberties).
31. See Sol Wachtler, Remarks at Memorial for former Chief Judge Charles D. Breitel, Jan.
9, 1992, in 78 N.Y.2d vi, viii (describing reforms implemented during Breitel's tenure as chief
judge and remarking on Breitel's management style).
32. Elizabeth Kolbert, In Rights Cases, New York Leans on Its Constitution, N.Y. TIMES,
Jan. 8, 1990, at Al, B4.
33. Id. at B4 (quoting Norman Siegel, Executive Director of New York Civil Liberties
Union).
34. See Vincent M. Bonventre, State Constitutional Adjudication at the Court of Appeals,
1990 and 1991: Retrenchment Is the Rule, 56 ALa. L. REV. 119, 121-23 (1992) [hereinafter
Bonventre, State ConstitutionalAdjudication] (suggesting Judge Wachtler's tenure as chief judge
reversed progressive movement of court); Vincent M. Bonventre, Court of Appeals-State ConstitutionalLaw Review, 1990, 12 PACE L. REv. 1, 49-51 (1992) [hereinafter Bonventre, Court of
Appeals] (providing statistical data linking Judge Wachtler to conservative trend in court); Vincent M. Bonventre, State ConstitutionalRecession: The New York Court of Appeals Retrenches,
4 EMERGING ISSUES ST. CONST. L. 1, 3 (1991) [hereinafter Bonventre, State ConstitutionalRecesHeinOnline -- 68 Temple L. Rev. 1408 1995
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tier court indicating broad support for the court of appeals' longstanding rec35
ognition of rights
and liberties
under
independent
state grounds.
Bonventre's identification of a more recent shift back toward the court's
traditional position under Chief Judge Judith Kaye 36 adds further support for
the effect of the chief judge's leadership opportunities at the court of appeals.
The exercise of leadership, or the failure to do so, can alter the commonly utilized and accepted practices and procedures of an appellate court,
and thereby affect the prevailing customs and expectations of the court's
members. These types of changes are noteworthy; appellate courts are rich
in tradition and appellate court judges, usually with long periods of socialization as members of the bar if not the judiciary, 37 are sensitive to the local
legal culture. 38 In considering the factors affecting judicial voting, then, it is
sion] (arguing that while New York gains attention for state constitutional adjudication, court
actually has cut back on right-expanding decisions).
35. See, e.g., Joseph W. Bellacosa, A New York State Constitution Touch of Class, 59 N.Y.
ST. BAR J. 14, 16 (1987) (citing example where New York Court of Appeals used procedural
aspect of Supreme Court case to provide greater liberties than federal law); Stewart Hancock,
Jr., The State Constitution, a Criminal Lawyer's FirstLine of Defense, 57 ALB. L. REV. 271, 279
(1993) (arguing that New York Court of Appeals led way in protecting civil rights through state
constitution in areas of right to counsel and self-incrimination); Judith S. Kaye, Foreword: The
Common Law and State Constitutional Law as Full Partners in the Protection of Individual
Rights, 23 RUTGERS L. REV. 727, 744 (1992) [hereinafter Kaye, Foreword] (asserting that New
York courts recognize rights and liberties under independent state grounds in area of privacy);
Judith S. Kaye, Dual Constitutionalismin Practiceand Principle,61 ST. JoHN's L. REV. 399, 419
(1987) [hereinafter Kaye, Dual Constitutionalism] (arguing that policy considerations rooted in
state constitution caused New York Court of Appeals to depart from federal precedent in area
of search and seizures); Vito J. Titone, State Constitutional Interpretation: The Search for an
Anchor in a Rough Sea, 61 ST. JoHN's L. REV. 431, 465-66 (1987) (asserting that New York's
traditional concern for rights of privacy and personal liberty led to development of right to counsel and prisoners' rights based on state law); Sol Wachtler, ConstitutionalRights: Resuming the
States' Role, 15 INTERGOVERNMENTAL PERSP. 23, 25 (1989) [hereinafter Wachtler, Constitutional
Rights] (stating that state courts often afford greater rights and protections then federal counterparts); see also Judith S. Kaye, Contributionsof State ConstitutionalLaw to the Third Century of
American Federalism, 13 VT. L. REV. 49, 52-56 (1988) [hereinafter Kaye, Contributions] (noting
that state courts such as New York's provide more directly for the interests of their citizens); Sol
Wachtler, Our Constitutions - Alive and Well, 61 ST. JoHN's L. REV. 381, 397 (1987) [hereinafter Wachtler, Our Constitutions] (noting that state constitution is most immediate protector of
individual rights).
36. See Vincent M. Bonventre & John D. Powell, Changing Course at the High Court, EMPIRE ST. REP. 55, 55-57 (Mar. 1994) (noting that Kaye's tenure as chief judge marks return to
traditional position for court as protector of fundamental rights); see also Bonventre, supra note
9, at 1203-04 (charting court's shift back to more traditional decision-making under Judge Kaye).
37. See Stephen L. Wasby, Into the Soup?: The Acclimation of Ninth Circuit Appellate
Judges, 73 JUDICATURE 10, 10-16 (1989) (arguing that socialization of judges is informal, unsystematic, and largely participatory).
38. Thomas W. Church, Jr., Examining Local Legal Culture, 1985 AM. BAR FOUND. REs. J.
449, passim (studying various ways "local legal culture" can impact on attitudes of judges and
others); Michael C. Gizzi & Christopher M. McMahon, Exploring Appellate Court Culture: An
Examination of the United States Courts of Appeals, Paper Presented at 1992 Law & Society
Association Annual Meeting (examining impact of the "local legal culture" on federal appellate
court judges).
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appropriate to keep in mind the socialization, norms of behavior, and backgrounds of the judges.
Regarding accepted means of behavior, the New York Court of Appeals
has traditions concerning congeniality among its members and consensus in
its decision-making. The small number of concurrences and dissents at the
court of appeals can be seen in the court's earlier years when its prestige was
at its highest. 39 The civility of those dissents written during Cardozo's time
has been noted.4 0 Prominent members of the court of appeals serving from
the 1940s to the 1980s have emphasized that dissenting opinions, though serving a useful purpose in some circumstances, were expected to be few and
restrained.4 1 Indeed, at the beginning of his tenure as chief judge in 1985, Sol
42
Wachtler placed consensus among his priorities for the court of appeals.
These expectations differ substantially from those currently in force at the
U.S. Supreme Court, whose justices'
dissent writing has been the subject of
43
criticism by prominent jurists.
The manner in which a court's "standard operating procedure" can
change and thereby affect its judges' voting behavior is seen in the dissent
patterns at the U.S. Supreme Court. As already mentioned, the Judges' Bill
of 1925 expanded opportunities for separate opinions."4 Stone's failure to
stifle independent expression through concurrences and dissents during his
tenure as chief justice contributed to the institutionalization of divided opinions by the Supreme Court.4 5 Similarly, Stone's practice of circulating his
law clerks' memoranda on unpaid petitions for certiorari laid the foundation
for the current "Cert Pool" and the justices' heavy reliance on their law
39. For example, in the 1934-1935 term, the Court of Appeals of New York decided 718
appeals with only 31 concurrences and dissents. ROBERT MACCRATE ET AL., APPELLATE JUSTICE IN NEW YORK 178, App. E-8 (1982); see also RiCHARD A. POSNER, CARDOzo: A STUDY IN
REPUTATION 80 (1990) (noting infrequency of concurring and dissenting opinions).
40. See POSNER, supra note 39, at 13 (noting absence of angry dissents in time of Cardozo).
41. See Stanley H. Fuld, The Voices of Dissent, 62 COLUM. L. REV. 923, 928 (1962) (arguing
that dissents should only be published if they stimulate discourse regarding soundness of majority opinion); Hugh R. Jones, Cognitationson Appellate Decision-Making, 34 RECORD ASS'N BAR
CrTY N.Y. 543 (1980) (arguing that decision to dissent must be made in view of best interests of
court and law).
42. See Gary Spencer, Wachtler Reviews Judicial Tenure, N.Y. L.J., July 21, 1993, at 1 (discussing appointment of Judge Wachtler); The Making of a ChiefJudge, N.Y. TIMEs, Jan. 6, 1985,
§ 4, at 6 (same).
43. See, e.g., Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. REV. 1185,
1191 (1992) (asserting that writing of unnecessary concurrences and dissents undermines reputation of judiciary); Roger J. Miner, FederalCourt Reform Should Start at the Top, 77 JUDICATURE
104, 107 (1993) (arguing for Supreme Court reformation of decision-making process to ease load
of federal system).
44. See Halpern & Vines, supra note 13, at 472 (assessing impact of Judiciary Act of 1925 on
dissenting behavior).
45. See generally Thomas G. Walker et al., On the Mysterious Demise of ConsensualNorms
in the United States Supreme Court, 50 J. POL. 361, 378-84 (1988) (discussing ineffectiveness of
Justice Stone as leading to breakdown of consensus of Supreme Court).
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clerks in making decisions on whether to grant review. 4 6 These developments suggest that changes in the accepted norms of behavior at an appellate
court can occur for a variety of reasons, all of which may affect voting
behavior.
Voting preferences of judges also have been analyzed from various perspectives related to judges' selection for the bench. Appointments to the
U.S. Supreme Court are examined regularly to determine if the executive has
been able to "have his way" on the nation's high court.47 The judges of other
courts are similarly studied. For example, President Reagan's conservative
rhetoric and policies, coupled with his administration's commitment to a conservative judiciary, seem to have yielded a federal judiciary less committed
than earlier appointees to supporting environmental and economic regulation. 48 President Bush's judicial appointees at the trial and appellate levels
have been compared to judges appointed by other presidents and found relatively conservative, 49 which is entirely consistent with the commitment made
50
by the Bush administration to appoint conservative judges.
A variety of background characteristics have also been examined for insight into judicial voting behavior. Jaros and Canon suggested that the career
experiences of state supreme court judges could affect their propensity to
dissent. 5 1 A series of studies of the Michigan and Wisconsin Supreme Courts
during the 1960s reached contrary results about the effect of party identification on judges' votes in particular types of cases. 52 For the New York Court
of Appeals, Beiser and Silverman found little correlation between party iden46. O'BRIEN, supra note 14, at 234-37 (discussing circulation of memoranda and reliance on
law clerks).
47. See, e.g., HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS 58 (3d ed. 1992) (examining
various presidents' motives in appointing Supreme Court Justices and Justices' subsequent voting records); Russell W. Galloway, Jr., The Roosevelt Court: The Liberals Conquer (1937-1941)
and Divide (1941-1946), 23 SANTA CLARA L. REV. 491, 492 (1983) (studying voting patterns of
Supreme Court during Franklin D. Roosevelt's presidency); S. Sidney Ulmer & John A.
Stookey, Nixon's Legacy to the Supreme Court: A Statistical Analysis of Judicial Behavior, 3
FLA. ST. U. L. REV. 331, 333 (1975) (examining voting trends and ideological impact of Nixon
Supreme Court appointees).
48. William E. Kovacic, Reagan's JudicialAppointees and Antitrust in the 1990s, 60 FoRDHAM L. REV. 49, 82-84 (1991) [hereinafter Kovacic, Reagan's Judicial Appointees]; William E.
Kovacic, The Reagan Judiciary and Environmental Policy: The Impact of Appointment to the
Federal Courts of Appeals, 18 B.C. ENvTL. AFF. L. REV. 669, 699-700 (1991) [hereinafter,
Kovacic, Reagan Judiciary].
49. Robert A. Carp et al., The Voting Behavior of Judges Appointed by President Bush, 76
JUDICATURE 298, 302 (1993).
50. Id. at 301.
51. Dean Jaros & Bradley C. Canon, Dissent on State Supreme Courts: The Differential
Significance of Characteristicsof Judges, 15 MIDWEST J. POL. Sci. 322, 327-28 (1971).
52. David W. Adamany, The Party Variable in Judges' Voting: Conceptual Notes and a Case
Study, 63 AM. POL. Sci. REv. 57, 72-73 (1969) (arguing that situational factors such as family and
socio-economic status may influence judicial voting); Malcolm M. Feeley, Another Look at the
"Party Variable" in Judicial Decision-Making: An Analysis of the Michigan Supreme Court, 4
POLITY 91, 101 (1971) (noting that party identification does not account for societal influences
such as age, length of tenure, and region of residence); S. Sidney Ulmer, The Political Party
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tification and judges' voting in workers' compensation cases. 5 3 Despite the
inquiries into the effects of these background characteristics on judicial voting, no precise consensus seems to have been reached.
These various perspectives on judicial voting behavior suggest that there
are many opportunities for voting practices to be studied usefully to gain
insight into the ways that judges exercise their discretion and authority. To
appreciate further the development of state constitutional interpretation,
these perspectives can be drawn upon. By examining voting behavior as reflected by judges' voting preferences, patterns and alignments, the motivations and influences that affect state constitutional decision-making can be
understood. It is appropriate, then, to turn to this particular study and explain its methods and objectives.
II.
SCOPE OF THE STUDY
The New York Court of Appeals is the subject of this study for a variety
of reasons. The court of appeals historically has been one of the nation's
most important state high courts. Its decisions have influenced the development of American law and social policy almost since the court's inception in
1847. 54 Citation studies confirm the influence of the New York Court of Ap-
peals on other courts at mid-century. 55 Benjamin Cardozo perhaps is the
best known of the court of appeals judges5 6 but others have been elevated to
the U.S. Supreme Court after serving on New York's high court 57 and the
court's chief judge has even resigned to run, albeit unsuccessfully, for President.58 Notably, the court of appeals traditionally has held an important
Variable in the Michigan Supreme Court, 11 J. PUB. L. 352, 355-62 (1962) (arguing that political
party affiliation is "cutting edge" as to how justices vote in certain types of cases).
53. Edward Beiser & Jonathon Silverman, The Political Party Variable: Workmen's Compensation Cases in the New York Court of Appeals, 3 POLrrY 521 (1971).
54. See, e.g., Palsgraf v. Long Island R. Co., 162 N.E. 99, 102 (N.Y. 1928) (introducing concept of proximate causation into tort law); MacPherson v. Buick Motor Co., 111 N.E. 1050, 1053
(N.Y. 1916) (attaching liability for product to manufacturer although product distributed
through retailer); Lawrence v. Fox, 20 N.Y. 268, 274 (1859) (finding defendant liable for debt
although promise to pay was made to third party).
55. See, e.g., Lawrence M. Friedman et al., State Supreme Courts: A Century of Style and
Citation, 33 STAN. L. REV. 773, 804-06 (1981) (noting that New York state cases are used most
frequently by courts of other states citing cases outside their state); John H. Merryman, The
Authority of Authority: What the CaliforniaSupreme Court Cited in 1950, 6 STAN. L. REV. 613,
667-68 (1954) [hereinafter Merryman, Authority] (noting that New York state cases were most
frequently cited out-of-state authority); John H. Merryman, Toward a Theory of Citations: An
EmpiricalStudy of the Citation Practicein the California Supreme Court in 1950, 1960, and 1970,
50 S. CAL. L. REV. 381, 401-02 (1977) [hereinafter Merryman, Toward a Theory] (finding that
New York cases were most heavily relied upon foreign authority).
56. See generally POSNER, supra note 39 (examining life and legal career of Benjamin
Cardozo).
57. Ward Hunt and Rufus W. Peckham also ascended to the United States Supreme Court
after serving on the New York Court of Appeals.
58. Alton Parker, who was Chief Judge from 1888 to 1904, was defeated by Theodore
Roosevelt in the 1904 Presidential election.
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place at the forefront of independent state law decision-making and has been
recognized for its progressive viewpoints. 59 These aspects of the New York
Court of Appeals make it especially appropriate for examination of decisionmaking influences in the area of state constitutionalism.
Various voting activity by New York Court of Appeals' judges is studied
here. First, voting preferences are assessed to determine the extent to which
particular outcomes are favored. 60 Next, voting patterns are considered to
determine the extent to which concurrences and dissents are registered. 6 1 Finally, voting alignments are analyzed by looking at the extent judges voted
together in pairs and searching for the existence of identifiable voting blocs.62
The analyses are undertaken for the court qua court, as well as for the individual judges. These examinations permit comparisons between particular
judges and the court, as well as among the individual judges.
The plenary appeals decided by the court of appeals during the five
court terms from 1987 through 1992 comprise the data set for performing
these analyses. All plenary appeals decided by the court using an opinion or
memorandum format are included. 63 Analysis of these court terms affords
insight into a discrete court period comprising a natural court that has been
the subject of some other serious investigation. 64 During these terms, the
59. See generally Bonventre, supra note 5, at 32 (portraying New York Court of Appeals as
leader in state protection of individual rights); Galie, supra note 30, at 193 (arguing that New
York Court of Appeals was at forefront of states in protection of individual liberties); cf WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 99 (1964) (noting that New York Court of
Appeals was generally hospitable to civil liberties claims) (citing Feiner v. New York, 340 U.S.
315, 288 (1951) (Frankfurter, J., concurring)).
60. See Appendix, Tables A-B for data examining voting preferences exhibited in the final
outcome.
61. See Appendix, Tables C-G for data revealing voting patterns in the majority opinions,
concurrences, and dissents issued.
62. See Appendix, Tables H-R for data showing voting pair alignments among the individual judges and identifiable voting blocs.
63. Appeals in the election cases were omitted from the data set because these appeals
usually are not heard in the course of the court's regularly scheduled terms. A few other appeals
were excluded because they exhibited unusual characteristics; such circumstances included certain odd jurisdictional bases giving rise to the appeal and the participation of lower court judges
in the New York Court of Appeals' decision-making process due to the temporary absences of
members of the court.
64. See Luke Bierman, When Less Is More: Changes to the New York Court of Appeals'
Civil Jurisdiction, 12 PACE L. REv. 61, 76 (1992) (evaluating court's expanded civil jurisdiction
between 1987 and 1989); Bonventre, Court of Appeals, supra note 34, at 3-4 (examining New
York Court of Appeals' application of independent state constitutional law in 1990); Vincent M.
Bonventre, Court of Appeals - State ConstitutionalLaw Review, 1991, 14 PACE L. REV. 353, 354
(1994) (reviewing state constitutional decisions of New York's Court of Appeals in 1991);
Bonventre, supra note 9, at 1164 (contrasting decisions of Chief Judge Kaye with those of Wachtier-era high court); Bonventre, State ConstitutionalAdjudication, supra note 34, at 121 (noting
Wachtler-era court's retrenchment to conservative stands on individual rights issues); Bonventre
& Powell, supra note 36, at 57 (examining Wachtler court's "lopsidedly pro-government"
stances); Galie, supra note 9, at 233-34 (examining New York Court of Appeals' use of federal or
state grounds for decisions in individual rights cases); Carl Swidorski, The New York Court of
Appeals and Civil Liberties: An Assessment of Recent Decisions, 3 ST. CONST. COMM. & NOTES
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members of the court of appeals were Chief Judge Sol Wachtler and Associate Judges Richard D. Simons, Judith S. Kaye, Fritz W. Alexander, II, Vito J.
Titone, Stewart F. Hancock, Jr., and Joseph W. Bellacosa. Governor Mario
M. Cuomo appointed each of these judges to the court between 1983 and
1987. Each had served as a state appellate judge prior to appointment by
Cuomo, except for Kaye, who had been a practicing attorney without judicial
experience upon appointment, and for Bellacosa, who had been the Clerk
and Counsel to the New York Court of Appeals and the Chief Administra65
tive Judge of the New York state courts.
Different categories of cases are examined. The overall plenary caseload
68
constitutes a category, 66 as do the civil caseload 67 and criminal caseload.
69
More specific categories also are examined.
Non-criminal civil rights and liberties cases provide one category for
analysis. 70 These cases affect important freedoms under federal or state constitutional, statutory, or regulatory schemes, particularly those that have
come to be perceived as important to personal autonomy and independence.
Because these cases ultimately determine the kind of society that judges envision, they appropriately are considered in an assessment of judicial behavior.
Studying voting behavior in this area is particularly appropriate because, despite the progressive tradition of the court of appeals dating back at least to
Cardozo, 71 the Wachtler court was seen as curtailing civil rights and
72
liberties.
Judicial federalism cases, many of which are closely related to civil liberties, constitute another category for analysis, 73 but with a different focus.
These cases involve disputes over the interpretation of the state constitution
against the backdrop of federal constitutional doctrine. During the 1980s, as
the U.S. Supreme Court limited or overturned Warren Court holdings
1, 7 (1991) (evaluating court's disposition of four civil liberties cases in 1990-1991 and analyzing
decisions).
65. Bellacosa had been appointed a state trial judge during his service as administrative
head of the New York courts but he did not exercise the functions of a trial judge, merely taking
advantage of the title.
66. See Appendix, Tables D, H-M, Q for data related to the overall plenary caseload heard
by the New York Court of Appeals.
67. See Appendix, Tables C, E for data relating to the civil caseload.
68. See Appendix, Tables A, C, F, R for data relating to the criminal caseload.
69. See Appendix, Tables B, C, G, N-P for data breaking down judicial voting behavior into
the more specific categories of civil rights and liberties cases, judicial federalism cases, and the
Cuomo Agenda cases.
70. See Appendix, Tables B, C, G, N for data relating to the civil rights and liberties cases
decided by the New York Courts of Appeals.
71. Bonventre, supra note 5, at 41-42 (noting that Cardozo-era court was influential in development of modem tort, property, contract, and state constitutional law).
72. Bonventre, Court of Appeals, supra note 34, at 52-53; Bonventre, supra note 64, at 445;
Bonventre, supra note 9, at 1164-65; Bonventre, State ConstitutionalAdjudication, supra note
34, at 121; Bonventre & Powell, supra note 36, at 57; Swidorski, supra note 64, at 7.
73. See Appendix, Tables B, C, G, 0 for data relating to the judicial federalism cases decided by the New York Court of Appeals.
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favorable to individual rights, the New York Court of Appeals confronted a
number of cases raising the extent to which the New York Constitution
adopted federal doctrine. Despite the attention provided to the few cases
where the Supreme Court addressed a federal constitutional issue and remanded the case to the New York Court of Appeals for further consideration
of the applicability of the state constitution, 74 the court of appeals enjoyed
many other opportunities to define the scope of the state constitution. The
cases in which the court of appeals specifically addressed whether to adopt,
as a matter of state constitutional law, a federal constitutional principle or an
independent rule are those included in this study.
As already noted, the extrajudicial writings of several court of appeals
judges, including Wachtler, Kaye, Titone, Hancock, and Bellacosa, indicated
a commitment to state constitutional adjudication independent of federal
constitutional principles. 75 Indeed, during the years just before those covered in this study, the court of appeals had been characterized as exhibiting a
high level of commitment to state law.76 Yet the court of appeals during the
period covered by this study was seen as retreating from its historical state
constitution-based support for broad protection of civil rights and liberties,
particularly for freedom of expression and criminal defendants. 77 The extent
to which the court and its judges preferred independent state constitutional
rules or relied on federal constitutional principles as a matter of state constitutional law when confronted with a choice between these competing rationales reveals the commitment to state constitutional adjudication.
Another category for analysis involves "Cuomo Agenda" cases. 78 These
cases involved challenges to programs that were a part of, or supportive of,
Governor Cuomo's plan for New York as outlined by his legislative proposals
and annual messages or implemented by his top appointees. Scholars have
looked at Reagan- and Bush-appointed judges to determine whether these
presidents' conservative policies and preferences gained approval from
74. See, e.g., Immuno AG. v. Moor-Jankowski, 549 N.E.2d 129, 132-33 (N.Y. 1989) (distin-
guishing factual statement from constitutionally-protected opinions in defamtation action), vacated and remanded, 497 U.S. 1021 (1990), on remand, 567 N.E.2d 1270 (N.Y.), cert. denied, 500
U.S. 954 (1991); People v. Harris, 532 N.E.2d 1229, 1232-35 (N.Y. 1988) (determining admissibility of self-incriminating remarks after illegal arrest), rev'd and remanded, 495 U.S. 14 (1990), on
remand, 570 N.E.2d 1051 (N.Y. 1991); People v. Class, 472 N.E.2d 1009, 1011 (N.Y. 1984) (deciding whether police inspection of vehicle identification number constitutes search entitled to protection of Fourth Amendment), rev'd and remanded, 475 U.S. 106, on remand, 494 N.E.2d 444
(N.Y. 1986). See generally Vincent M. Bonventre, New York and the Supremes: State Constitutional Law on the Rebound at the Court of Appeals, ST. CONST. COMM. & NoTEs (forthcoming).
75. See supra note 35 (citing articles by judges on New York Court of Appeals on applica-
tion of state constitutional law).
76. See, e.g., Esler, supra note 1, at 27-29 (noting tendency of court to decide cases on
independent state constitutional grounds).
77. Bonventre, Court of Appeals, supra note 34, at 52-53; Bonventre, supra note 64, at 445;
Bonventre, supra note 9, at 1164-65; Bonventre, State ConstitutionalAdjudication, supra note
34, at 121; Bonventre & Powell, supra note 36, at 59-60; Swidorski, supra note 64, at 7.
78. See Appendix, Tables B, C, G, P for data relating to the Cuomo Agenda cases decided
by the New York Court of Appeals.
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"their" judiciary.79 Similarly, Cuomo's expressed concern about the quality
of the judiciary generally and the court of appeals specifically, 80 his appointment of all members of the Wachtler court, and his extensive policy initiatives during three terms as governor provide the basis for examining how his
81
first seven appointees to the court of appeals responded to his agenda.
Analysis of voting preferences is based on the outcome as represented
by the prevailing position or party in a case. For criminal cases, the outcomes
are based on whether the prosecution or the defendant prevailed. 82 For civil
rights and liberties cases, the outcomes are based on whether the individual
or the state or institution prevailed. 8 3 For judicial federalism cases, a judge is
coded as adopting a state law ground if the opinion for which the judge voted
explicitly adopted an independent state rule as its rationale; conversely, the
judge is treated as preferring federal law if the opinion for which the judge
voted adopted federal constitutional doctrine as the state rule. 84 For Cuomo
Agenda cases, the outcomes are based on whether the Cuomo position was
85
favored or rejected.
Analysis of voting patterns is based on the extent to which a judge aligns
with the majority. 86 This requires identification of whether a judge has concurred or dissented. Dissents are identified fairly simply, as the opinions indicate that a judge is dissenting. It should be noted that plurality decisions
are practically nonexistent at the court of appeals, in sharp contrast to the
situation at the U.S. Supreme Court. Because it typically reaches majority
decisions, the court of appeals' voting patterns are much simpler to discern
than those of the Supreme Court.
79. See, e.g., Carp et al., supra note 49, at 302 (noting conservative voting behavior of
Bush's judicial appointees); Kovacic, Reagan's JudicialAppointees, supra note 48, at 82-83 (recognizing anti-economic regulation stances of Reagan's judicial appointees); Kovacic, Reagan Judiciary, supra note 48, at 699-700 (noting tendency of Reagan appointees to adopt position
opposing environmental regulation).
80. See How Cuomo Selected Wachtler, Alexander, N.Y. L.J., Jan. 3, 1985, at 3 (describing
how Cuomo solicited members of state bar association in identifying selection concerns and
criteria); David Margolick, Republican Judge Is Named to Top Court Post, N.Y. TIMEs, Jan. 3,
1985, at Al (stating that selection of Wachtler was based on judge's "excellence" and not political affiliation); Michael Oreskes, Cuomo Appoints a GOP Judge to Appeals Seat, N.Y. TIMEs,
Jan. 4, 1983, at Al (stating that Simons was appointed judge to preserve court's "continuity");
Jeffrey Schmalz, Cuomo Sees Peril in Picking Judges on Ideology Basis, N.Y. TIMES, Aug. 12,
1986, at Al (noting Cuomo's concern that federal judges were being chosen for political ideology
rather than qualifications).
81. It should be noted that the most telling "Cuomo Agenda" case, that involving Wachter's challenge to Cuomo's budgetary treatment of the judiciary, was not resolved by judicial
determination. Howard B. Glaser, Wachtler v. Cuomo: The Limits of Inherent Powers, 78 JUDICAruRE 12, 19 (1994).
82. See Appendix, Table A.
83. See Appendix, Table B for data showing whether the outcome of the judge's vote was
liberal or conservative.
84. id.
85. Id.
86. See Appendix, Tables D-G for data analyzing judicial voting patterns.
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Concurrences are not counted as part of the majority but are tabulated
as separate votes because this study focuses on each individual's voting behavior. Because court of appeals judges rarely disagree on outcome,8 7 focusing here on the extent to which judges agree with the majority by treating a
concurrence or a dissent as a distinct vote permits assessment of the judges'
propensities to vote separately and thereby may avoid a false impression of
the extent of unanimity derived from looking simply at outcomes. This approach, if anything, will overstate disagreement among the court's judges.
Analysis of voting alignments is based on the extent to which the court
of appeals judges voted with each other in cases with concurring and/or dissenting opinions.8 8 Voting pairs are analyzed from a matrix matching each
judge's votes with those of each other member of the court. Consistent with
the protocol described above, one judge's vote matches another's vote only
when they join in a specific opinion, not merely when they agree on outcome.
Alignments also are viewed from the parameters established by Schubert for identifying voting blocs. 89 For example, votes of the judges in cases
with concurring and/or dissenting opinions are arranged in a matrix and, using the index of cohesion, which "reflects the average frequency of dissenting
votes cast by bloc members in conjunction with other members of the same
bloc," 90 the strength of the bloc is identified by low, medium, or high cohesion. 91 Although this study follows Schubert's use of the case as the unit of
analysis, 92 Pritchett's counting of only judges who agreed on rationale as voting together is the methodology adopted in this study, 93 as described above.
These conventions in constructing voting alignments should ensure that the
judges' votes in agreement with others better reflect the tendency for judges
to be forming alliances based on specific ideological agreements in all cases
decided.
87.
mously
88.
89.
See Bierman, supra note 64, at 86 (noting that New York Court of Appeals voted unaniin approximately 90% of civil cases).
See Appendix, Tables H-R for data analyzing judicial voting pairs and blocs.
GLENDON A. SCHUBERT, QUANTITATIVE ANALYSIS OF JUDICIAL BEHAVIOR 79-89
(1959).
90. Id. at 89.
91. Id. at 90.
92. See id. at 80 (counting case voted on rather than opinions, where concurrences and
dissents may apply to multiple cases); cf. C. HERMAN PRITCHETIr, CIVIL LIBERTIES AND THE
VINSON COURT 240 (1954) [hereinafter PRITCHETT, CIVIL LIBERTIES] (counting votes only once
regardless of how many cases to which vote applied); C. HERMAN PRITCHETT, THE ROOSEVELT
COURT: A STUDY IN JUDICIAL POLITICS AND VALUES, 1937-1947 177-80 (1948) [hereinafter
PRITCHETT, THE ROOSEVELT COURT] (same).
93. See PRITCHETT, CIVIL LIBERTIES, supra note 92, at 240 (counting frequency of judges
voting together in non-unanimous opinions); PRITCHETT, THE ROOSEVELT COURT, supra note
92, at 177-80 (grouping judges by number of times they joined in same dissent). Cf.SCHUBERT,
supra note 89, at 83-85 (basing voting agreement on joining in outcome rather than joining in
rationale). See also Joel B. Grossman, Dissenting Blocs on the Warren Court: A Study in Judicial
Role Behavior, 30 J. POL. 1068, 1089 (1968) (arguing that bloc analysis is useful only for identifying "the commonality of views shared by Justices who frequently dissent together" and not for
examining dynamics of judicial decision-making process).
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Data for each court term are presented when examining the voting preferences and voting patterns in certain broader caseload categories. 94 The
more specific subject matter categories of cases, however, are analyzed by
category without regard to court term, largely because of the relatively small
95
number of cases included in these categories.
With regard to analysis of voting alignments, data on voting pairs are
presented only for the overall plenary caseload in each term and the more
specific subject matter categories as the data for the civil and criminal
caseloads essentially mirrored the overall data. Bloc analysis is presented
without regard to court term, as the total number of concurring and dissenting votes is relatively small and consideration based on particular court terms
provides too few votes to yield identifiable voting patterns. Indeed, even using this protocol left a sufficient number of cases to discern identifiable patterns only for the overall and criminal caseloads, which are presented.
Examination of these various aspects of voting behavior will permit
broader assessment of the New York Court of Appeals judges' approaches to
state constitutional decision-making. By concentrating on judicial decisionmaking in a variety of distinct categories of cases, comparisons can be made
which should allow greater insight into the influences and motivations that
affect judicial decision-making generally and state constitutional decisionmaking specifically. In this way, the dynamics underlying the "New Judicial
Federalism" might be better appreciated.
III.
VOTING PREFERENCES
A. Criminal Cases
1. Preferences
In four of the five terms under examination, the court of appeals favored
the prosecution more often than the defendant, with the other term showing
outcomes about equally divided between the prosecution and the defendant.96 The court's preference for the prosecution was highest in 1987-1988 at
72% and lowest in 1991-1992 at 50%. The highest rates of preference for the
prosecution occurred in the earlier three terms with the last two terms showing preference for the prosecution at noticeably lower rates. A trend away
from favoring the prosecution can be identified in the judges' voting prefer97
ences in criminal cases during these terms.
The individual judges' voting preferences in criminal cases in each term
reveal several patterns. During these terms, each individual judge's preference tended to approximate the court's preference. In no term was an individual judge's preference more than eight percentage points different from
94. See Appendix, Tables H-M for data revealing voting behavior across broad categories in
each of the terms studied.
95. See Appendix, Tables C, G, N-P for data showing voting behavior in smaller, more
specific categories.
96. See Appendix, Table A.
97. Id.
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the court's preference (Alexander and Titone in 1989-1990 at eight points)
and most judges' preferences fell within a couple of percentage points of the
court's preferences. In four of the five terms, all judges preferred the prosecution, with the only exception in 1991-1992, when the court's preference was
almost evenly divided. The difference between the most pro-prosecution and
least pro-prosecution judge in each term ranged from 5% to 12%. These
data suggest that there was a great deal of collective agreement about how to
98
resolve criminal cases.
The individual judges' votes indicate that their preferences as compared
to the court and to other judges tended to remain fairly consistent. Wachtler,
Simons (except 1987-1988), and Bellacosa were more pro-prosecution than
the court in each term. Kaye, Titone and Hancock were less pro-prosecution
than the court in each term (except that Hancock equaled the court in 19901991) and Alexander was less pro-prosecution in each term but 1988-1989. 99
Bellacosa was the court's most pro-prosecution member in four of the
five terms (though tied with Wachtler in 1987-1988 and with Simons in 19901991). Wachtler and Simons were within the top three most favorable to the
prosecution in each term. Titone, on the other hand, was the court's most
pro-defendant member in four of the five terms (though tied with Kaye and
Alexander in 1989-1990). Kaye was the second or third most pro-defendant
judge in each term. Alexander and Hancock's preferences tended to vary;
Alexander was the most pro-prosecution in 1988-1989 but tied as the most
pro-defendant in 1989-1990 and Hancock's record was more centrist. 100
2. Assessment
The court's preference for the prosecution may be unexpected for several reasons. Considering the court's historical reputation as progressive,
which should suggest sympathy for defendants' claims of unfairness, and its
longstanding discretionary jurisdiction over criminal cases, 10 which would
suggest broad opportunities for selecting cases with egregious violations of
defendants' rights, outcomes more favorable to criminal defendants might
have been expected. The court's failure to act in this expected manner might
be attributed to a law-and-order approach in criminal cases during a time of
substantial public concern over crime. Certainly the court of appeals recog98. Id.
99. id.
100. Id.
101. Except for capital cases, which have not existed in New York since 1984, see People v.
Smith, 468 N.E.2d 879, 893-99 (N.Y. 1984) (holding mandatory death sentence unconstitutional
without consideration of mitigating circumstances), cert denied, 469 U.S. 1227 (1985), criminal
cases are usually accepted for plenary review by the Court of Appeals upon the leave of a single
Court of Appeals judge to whom an application for leave is assigned. N.Y. CONsT. art. VI,
§ 3(b) (McKinney 1982); N.Y. CRIM. PROC. LAW arts. 450.90, 460.20 (McKinney 1994). Certain
intermediate appellate judges have limited authority to grant leave to appeal in criminal cases.
N.Y. CRIM. PROC. LAW arts. 450.90, 460.20; see generally Stuart M. Cohen, Criminal Leave Applications to the Court of Appeals, N.Y. ST. BAR J., Jan. 1990, 28, 30 (reviewing procedures for
appealing criminal cases in New York state judicial system).
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nized the societal impact of increasingly pervasive criminal activity during the
years of this study, as indicated by the court's references to substantial increases in lower court criminal caseloads in the late 1980s and early 1990s. 10 2
The trend away from pro-prosecution outcomes during the later terms of
the study, then, would be hard to explain. Perhaps the more pro-prosecution
outcomes could have resulted from the effect of a 1985 amendment to the
court of appeals' jurisdiction, which afforded substantial discretion to the
court over its civil jurisdiction. As they became more comfortable with their
enhanced discretionary authority after the jurisdictional amendment, the
judges might have tended to choose cases in which the criminal defendant
had presented particularly attractive, and favorable, issues. The presence of
a lag before the full impact of the jurisdictional amendment was felt can be
attributed to the need for some time and effort before the judges became
comfortable with the alterations to longstanding operating procedures, as occurred with the U.S. Supreme Court following the Judges' Bill of 1925.103
The rather noticeable change, however, in the judges' preferences in criminal
cases, which were not affected by the jurisdictional amendment, tends to undermine this jurisdictional explanation.
More likely explanations for the preferences relate to the chief judge's
leadership and the other judges' approach to their work based on their backgrounds and experiences. That Wachtler pushed the court in a particular direction is consistent with Bonventre's assessment of voting behavior during
this period. 10 4 The court's high support for the prosecution during the early
terms would be consistent with a law-and-order orientation encouraged by
Wachtler in advance of a possible future bid for governor1 0 5 or to enhance
his reputation with conservative presidents considering appointments to the
102. The persistent theme in the annual State of the Judiciary reports prepared by Chief
Judge Sol Wachtler from 1990 to 1992 was the tremendous increase in filings in the New York
trial courts, especially the criminal courts. See STATE OF NEW YORK, UNIFIED COURT SYSTEM,
THE STATE OF rHm JUDICIARY, 1992 4-5, 20-21 (highlighting dramatic increases in state-wide
case filings); STATE OF NEW YORK, UNIFIED COURT SYSTEM, THE STATE OF THE JUDICIARY,
1991 9 (same);
STATE OF NEW YORK, UNIFIED COURT SYSTEM,
THE
STATE OF THE JUDICIARY,
1990 4-8 (same).
103. See Halpern & Vines, supra note 13, at 473 (noting that full effect of Judiciary Act of
1925 not felt until 1927 Term).
104. See Bonventre, Court of Appeals, supra note 34, at 52-53 (indicating that Wachtler-era
Court of Appeals restricted court's formerly progressive stances on individual rights); Bonventre, supra note 64, at 445 (same); Bonventre, supra note 9, at 1164-65 (same); Bonventre, State
ConstitutionalAdjudication, supra note 34, at 121 (same).
105. Wachtler was a perennial possible candidate for the Republican nomination for Governor. Sam H. Verhovek, Friends' View of Judge: G.O.P.Answer to Cuomo, N.Y. TIMES, Nov. 8,
1992, at 48 (describing Wachtler's frequent contemplation of gubernatorial candidacy). Indeed,
Cuomo's appointment of Wachtler as Chief Judge of the New York Court of Appeals in 1985
effectively removed a prominent potential candidate from the 1986 gubernatorial election. And
there was little doubt that he was considering a run for governor in 1994. See generally Sam
Roberts, A Judge's Interest in Being Governor is Decided the Hard Way, N.Y. TIMES, Nov. 9,
1992, at B6.
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U.S. Supreme Court. 10 6 Indeed, Wachtler authored an opinion limiting the
scope of post-conviction collateral attacks in criminal cases 10 7 that is analogous to contemporaneous U.S. Supreme Court limitations to habeas corpus
relief,108 and supported a restriction to New York's expansive right to counsel rule' 0 9 in accordance with a view he had long advocated. 1 0 Wachtler's
influence as chief judge in securing these decisions is apparent.
The court's diminishing support for the prosecution during the latter
terms could have resulted from Wachtler's distraction from the court's work
as he battled Governor Cuomo in the press and the courts over funding for
the judiciary"' and engaged in his own pattern of criminal conduct that led
12
ultimately to his resignation and conviction on federal felony charges."
Without the strong influence of the chief judge, the other judges might have
been more amenable to outcomes favoring defendants.
The effect of Wachtler's leadership, or lack thereof, finds further support
in the fact that his preferences follow the court's preferences very closely.
These votes could support the view that Wachtler led the court, as Chief Justice Warren was able to do, 113 or that Wachtler registered his votes to ensure
agreement with a court that had moved beyond his control, as occurred with
Chief Justice Burger. 1 4 Considering that Wachtler's colleagues initially
respected him as chief, and that the chief judge's authority and leadership are
well-recognized in the workings of the court of appeals, the other judges'
deference to Wachtler's preferences seems plausible, at least during the ear106. Reports indicated that Wachtler was consciously pursuing a high court seat. Eric Pooley, Crazy for You, N.Y. MAG., Dec. 14, 1992, at 35, 43 (stating that Republican fundraiser
pushed for high court seat for Wachtler).
107. People v. Jackson, 585 N.E.2d 795, 796 (N.Y. 1991) (holding that defendant must show
error and prejudice in prosecution's failure to produce witness statements during discovery).
108. See, e.g., Keeney v. Tamayo-Reyes, 112 S. Ct. 1715, 1718-19 (1992) (finding that on
habeas appeal defendant must meet stricter "cause and prejudice" standard when denied federal
evidentiary hearing); Coleman v. Thompson, 111 S. Ct. 2546, 2553-54 (1991) (finding federal
habeas appeal properly dismissed when based on "independent and adequate" state procedural
grounds).
109. People v. Bing, 558 N.E.2d 1011, 1012-14 (N.Y. 1990) (finding that right to counsel
does not indelibly attach from prior charge to pending, unrelated charge).
110. People v. Bartolomeo, 423 N.E.2d 371, 377-79 (N.Y. 1981) (Wachtler, J., dissenting)
(arguing that retention of counsel from prior, unrelated charge should not carry over to future
charge absent police awareness), overruled by People v. Bing, 558 N.E.2d 1011 (N.Y. 1990).
111. See generally Glaser, supra note 81, at 12 (discussing lawsuit Wachtler filed against
Cuomo over judicial budget).
112. See Josh Barbanel, ChiefJudge Quits Post in New York in Extortion Case, N.Y. TIMES,
Nov. 11, 1992, at Al (discussing Wachtler's resignation amid investigation on extortion charges);
Diana J. Schemo, Sol Wachtler Is Sentenced to 15 Months, N.Y. TIMES, Sept. 10, 1993, at B1
(describing Wachtler's sentence upon conviction on extortion charges).
113. See O'BRIEN, supra note 14, at 298 (noting Warren's ability to command unanimity in
Brown v. Board of Education); WASBY, supra note 14, at 245 (stating that Warren was known as
"Super Chief" for strong leadership of Court).
114. See WASBY, supra note 14, at 231 (noting that Burger often "passed" on conference
vote to vote with majority and assign opinion author).
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lier terms.115 His distractions in the latter terms would help explain the
court's move to greater support for defendants.
In conjunction with the effects of Wachtler's leadership is the possibility
that the associate judges acted more independently in the latter terms. At
the beginning of the 1987-1988 term, the senior associate (Simons) had
served only four years on the court, with the most junior judge having less
than one year of tenure (Bellacosa). As the length of the associate judges'
service increased, they might have felt less constrained to follow the lead of
the far more experienced chief judge (Wachtler had more than 15 years experience on the court of appeals, having served almost a full 14-year term as an
associate upon his elevation to chief judge), especially if he became distracted from the court's work in the latter terms. The judges' independence
also might have been enhanced by a "nudge" from the U.S. Supreme
Court, 1 16 which had reviewed several court of appeals rulings during this period. 117 The interrelationship of leadership and the lack thereof by the chief
judge and of the socialization and personal growth of new court members can
be seen to have affected voting preferences in criminal cases.
B. Civil Rights and Liberties Cases
1. Preferences
The New York Court of Appeals rendered more decisions favoring conservative rather than liberal outcomes in the civil rights and liberties cases.
Slightly more than 50% of the civil rights and liberties cases were resolved
against individual freedoms and in favor of the state or institutions. 1 8 Thus
the court during these terms can be described as being slightly more likely to
favor conservative positions than liberal ones in civil rights and liberties
situations.
The individual preferences of the judges in these cases seem capable of
division into two groups. Four judges (Wachtler, Simons, Hancock, and Bellacosa) were equally or more conservative than the court. Three judges
(Kaye, Alexander, and Titone) were noticeably more liberal than the court.
The more conservative judges expressed preferences that were comparable
115. See Kolbert, supra note 32, at Al, B4 (noting that Wachtler was viewed as "dominant
force" on New York Court of Appeals).
116. See Richard A. Brisban, Jr. & John C. Kilwein, U.S. Supreme Court Review of State
High Court Decisions, 78 JUDICATURE 33, 36 (1994) (finding Supreme Court usually affirmed or
remanded state supreme court cases on criminal procedure issues between 1953 and 1990); but
cf. id. at 37 (noting that Rehnquist court was more likely to reverse or remand state criminal
procedure cases in conservative manner). It must be emphasized that the trend toward more
liberal positions in New York identified by the authors is replicated in the broader subject categories in this study. Id. at 38-39. This suggests that the United States Supreme Court's role as
the cause of shifting voting preferences should not be overstated.
117. See supra note 74 for a collection of court of appeals cases which were reveiwed by the
United States Supreme Court.
118. See Appendix, Table B for data revealing the conservative voting preferences of the
Wachtler court during the years of the study.
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to each other. Similarly, the more liberal judges expressed preferences that
were comparable to each other.11 9 The clear delineation of different preferences contrasts with the judges' common preferences in criminal cases.
2. Assessment
The court's conservative preference, even if a narrow one, is unexpected
in light of its long recognized commitment to progressive protection for civil
rights and liberties, a preference which other researchers have documented.12 0 A majority group of Wachtler, Simons, Hancock, and Bellacosa
provided the basis for the court's preferred conservative outcomes. 12 1 Wachtler's leadership in forging this group is a plausible explanation for the court's
preference. As a potential candidate for governor and an apparent suitor of
a U.S. Supreme Court appointment by a conservative Republican president,
Wachtler had much to gain by portraying himself on the conservative end of
the spectrum.
Support for this position from Simons and Bellacosa is not surprising
considering their pro-prosecution (generally considered a conservative view)
preferences in criminal cases.12 2 Moreover, Bellacosa was a long-time friend
and supporter of Wachtler. Simons had served many years in the judiciary,
where a tendency to follow an experienced chief judge could have developed.
In contrast, it should not be overlooked that the more liberal judges consisted of a woman without prior judicial experience (Kaye), an AfricanAmerican (Alexander), and an Italian-American (Titone), all of whom might
be characterized as "outsiders" less prone to the influence of the chief judge.
Bellacosa's longstanding friendship with Wachtler and prior service in leadership roles in the state judiciary, including as Clerk and Counsel of the New
York Court of Appeals and as Chief Administrative Judge (serving with and
under Wachtler in both capacities), could have diminished any "outsider"
tendencies as an Italian-American, factors which might distinguish Titone
from Bellacosa. Titone, as well as Alexander, however, had served lengthy
terms in the state lower appellate courts, so they are difficult to characterize
as outsiders in the same way as Kaye. Of course, Kaye's extensive experi119. See Appendix, Table B.
120. See, e.g., Bonventre, Court of Appeals, supra note 34, at 50 (observing court's increasing lack of sympathy towards civil rights and liberties claims in recent years); Bonventre, supra
note 64, at 1196-98 (noting conservative preference of court in 1990 and 1991); Bonventre, supra
note 9, at 1165 (describing record of court during later Wachtler era on state constitutional issues
as "pro-government" and "pro-prosecution"); Bonventre, State Constitutional Adjudication,
supra note 34, at 120 (observing conservative trend on court regarding civil rights and liberties
issues); Bonventre & Powell, supra note 36, at 55-56 (describing traditional role of court of
appeals in protecting constitutional liberties and strong pro-government record under Wachtler);
Swidorski, supra note 64, at 1 (discussing tendency of New York Court of Appeals to rely on
state constitution to decide civil liberties issues).
121. See Appendix, Table B for data revealing the conservative voting preferences of this
group.
122. See Appendix, Table A for data revealing the pro-prosecution bent of Judges Simons
and Bellacosa.
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ence as a litigator before appointment to the judiciary provided substantial
exposure to the dynamics of traditional means of judicial behavior.
C. JudicialFederalism Cases
1. Preferences
The court of appeals adopted the federal constitutional position almost
twice as often as an independent state constitutional ground in the cases
resolving whether to accept federal constitutional doctrine or a different standard under the state constitution. 123 In the thirty cases in this category, the
court of appeals adopted an independent state ground in only twelve, or
40%, of the cases.12 4 This pattern reveals the court's preference for the federal constitutional standard as opposed to an independent state rule derived
from the New York Constitution.
The individual preferences of the judges are capable of division into separate groups. Three judges (Wachtler, Simons, and Bellacosa) preferred federal constitutional grounds more often than the court while the remaining
four judges preferred independent state constitutional rules. Although the
judges preferring the federal grounds registered similar rates, those more
amenable to independent state grounds varied more in their preferences. For
example, Titone was most supportive of independent state grounds at almost
80%, Kaye was at 69%, and Alexander and Hancock were more evenly split
in their support of the different rationales. 25 This posture suggests that the
three judges favoring federal grounds were rather firm in their support while
the others, except perhaps for Titone, were more amenable to accepting another position. It is noteworthy that Wachtler, Simons, and Bellacosa again
appear firmly on the same side of the scale.
2. Assessment
The court's strong preference for the federal constitutional position instead of independent state grounds is unexpected from a court that has long
been at the forefront of independent state decision-making and that has been
26 It
characterized as having a high commitment to using state law grounds.
is particularly noteworthy because several members of the court of appeals
had gone out of their way to express strong support for basing decisions on
the state constitution. 27 The preferences of Wachtler and Bellacosa for the
federal constitutional position as a matter of state constitutional law sharply
123. See Appendix, Table B.
124. Id.
125. Id.
126. Esler, supra note 1, at 29. See also Bonventre, supra note 5, at 32 (referring to Court
of Appeals as leader in adjudication of state-protected liberties since it first convened in 1847).
127. See generally supra note 35 (referencing articles written by members of New York's
high court).
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contrast with their extrajudicial support for independent state constitutional
128
decision-making.
Wachtler's ambition for the governorship or higher judicial office may
explain his preferences for comparatively conservative federal doctrine. If
so, Bellacosa's preferences mirroring those of his long-time friend and colleague are understandable. Simons' preference for the federal constitutional
position coincides with his clearly expressed view that deference should be
paid to federal constitutional doctrine. 129 The similar preferences of Wachtler, Simons, and Bellacosa for federal constitutional rules at a time of conservative decision-making at the U.S. Supreme Court an be described as
consistent with the pro-prosecution and conservative preferences displayed
in the categories already examined.
Titone and Kaye's more regular support for independent state constitutional grounds, unlike the situation with Wachtler and Bellacosa, is consistent
with their extrajudicial pronouncements on the topic 130 and compatible with
more liberal preferences in the other categories. The more mixed preferences by Alexander and Hancock may reflect some accommodation to the
chief judge, as at least Hancock has indicated that he favored no particular
13
ideological approach in resolving cases raising state constitutional issues. '
These latter judges' less dogmatic preferences in judicial federalism cases apparently afforded the Wachtler, Simons, and Bellacosa grouping the opportunity to achieve a fourth vote to attain the court's preferred federal position.
D. Cuomo Agenda Cases
1. Preferences
The court of appeals approved Cuomo-supported positions by a wide
margin. Almost two-thirds of the thirty-five Cuomo Agenda cases decided
by the court during this period were resolved in favor of the Cuomo-supported position. 132 Thus, the Court of Appeals favored Cuomo-supported
positions by an almost 2 to 1 margin.
The individual preferences of judges in Cuomo Agenda cases seem divisible into two groups. Four judges (Wachtler, Simons, Kaye, and Bellacosa)
were about as or more supportive of the Cuomo position than the court. The
128. See, e.g., Bellacosa, supra note 35, at 17 (commending court for basing decisions on
state constitution, which provides greater protections for individual rights than federal Constitution); Wachtler, ConstitutionalRights, supra note 35, at 23 (praising state courts for turning to
state constitution more frequently in recent years, since state constitution offers greater protections of rights than federal constitution); Wachtler, Our Constitutions, supra note 35, at 395
(noting that state constitutions are significant part of American constitutional system).
129. Immuno AG. v. Moor-Jankowski, 567 N.E.2d 1270, 1283 (N.Y.) (Simons, J., concurring), cert. denied, 500 U.S. 954 (1991); Bonventre, supra note 64, at 400-01.
130. See generally supra note 35 (referencing articles written by members of the New York
Court of Appeals).
131. See Hancock, supra note 35, at 286-87 (setting out alternate methodology for deciding
cases which raise issues of state constitutional law).
132. See Appendix, Table B.
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other three judges were far less supportive of the Cuomo position, preferring
this outcome between 42% and 48% of the time. Bellacosa was most supportive, preferring the Cuomo position in three-quarters of the cases. Wachtier was next in support for Cuomo. On the other hand, Alexander and
Titone were least supportive of Cuomo, both preferring the Cuomo position
just over 40% of the time, with Hancock favoring the Cuomo-supported outcome at a rate of just under 50%.133
2. Assessment
The court of appeals' support for Governor Cuomo's position could easily be attributed to the judges' allegiance to their primary benefactor; after
all, Cuomo appointed each of them to the court of appeals. But this explanation seems too simplistic. For example, both Bellacosa and Titone were longtime friends and allies of the governor, yet their voting preferences in these
cases are at the opposite extremes. Wachtler, a long-time friend but now
potential political foe of Cuomo, with whom he bitterly clashed over court
funding,134 registered strong support for the governor's programs. Little
political benefit could come from this support.
From another perspective, however, the support for the Governor's programs by Wachtler, Simons, and Bellacosa can be explained as consistent
with these judges' preferences in the other categories. By approving
Cuomo's positions, these judges registered support for acts of government
that had received approval in the democratic process. In this way, the judges
can be seen as not simply approving Cuomo's agenda, but rather as deferring
to the more representative branches of government. An approach of this sort
in the Cuomo Agenda cases would be analogous to the conservative preferences expressed by these judges in favor of the prosecution in criminal cases,
of the government in civil rights and liberties cases, and of the Federal Constitution in judicial federalism cases. Considering his reported aspiration to a
U.S. Supreme Court that was in many ways supportive of and deferential to
duly-adopted programs of the more democratic branches, Wachtler's strong
support for Cuomo positions enacted through democratic means would make
sense under this scenario. His influence as Chief Judge can be seen to have
had mixed success, in light of the variable preferences of the judges in this
category.
E. Summary
The court of appeals seems to have preferred the prosecutor in criminal
cases, the state in civil rights and liberties cases, the federal approach in judi133. Id.
134. See supra notes 80, 105-06, and accompanying text for a description of both the relationship between Wachtler and Cuomo and of Wachtler's own political ambitions as portrayed in
newspaper articles.
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cial federalism cases, and the governor's position in Cuomo Agenda cases. 135
Each of these positions could be characterized as conservative, which would
seem contrary to the traditional progressive reputation of the court of appeals. These preferences, however, can be seen as responsive to societal concerns about increased crime and excessive concern for criminal defendants,
and to public support for duly-enacted governmental programs initiated by
Cuomo, who won reelection in 1986 and 1990 by landslide proportions. In
this way, the court of appeals tends to reflect prominent emphases of the U.S.
Supreme Court during the same period.
The court's preferences also would comport with the objectives of a
chief judge who may have been posturing for other public office, whether a
run for governor or appointment to the U.S. Supreme Court. Under this
scenario, the court of appeals' preferences during these terms are more understandable. The judges, most of whom served on or practiced in lower
state courts where they exercised a subordinate role, can be seen as following
the leadership of a charismatic and popular chief judge and agreeing to the
more conservative outcomes. The consistent voting of Simons and Bellacosa
for the same preferences as Wachtler, with occasional joinder by Kaye, Alexander, and/or Hancock, indicates that Wachtler might have exerted influence
on the court's members. The drift toward more pro-defendant outcomes in
those terms when Wachtler might have been most distracted from the business of the court and when the associate judges had gained more experience
and confidence in their roles provides added support for the importance of
Wachtler's leadership role in determining voting preferences. These different
effects are analogous to Chief Justice Warren's strong leadership of the
Supreme Court in the 1960s and Chief Justice Burger's less effective leadership over an increasingly experienced Court in the 1970s and 1980s.
IV.
VOTING PATTERNS
A. Overall Cases
Perhaps the most striking aspect of the court of appeals' voting pattern is
the extent to which the court decided cases without concurrences and dissents. 136 The court decided cases with all judges agreeing in a single opinion
approximately four-fifths of the time in each term, with the highest rate at
87% in 1987-1988. Concurrences were rather infrequent, never occurring in
more than 6% of the cases per term. Dissents appear in no more than onefifth of the cases per term, with the rate per term falling between 10% and
20%.137 This court acted with consensus.
The court's high agreement rate also is seen from the extent to which the
judges agreed with the majority. No judge agreed with the majority less than
135. See Appendix, Table B for data showing the voting preferences of the court in these
specific categories of cases.
136. See Appendix, Table C.
137. Id.
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90% of the time in any term. 138 Having identified high rates of unanimity in
the court's plenary civil caseload, 139 the strong tendency for agreement with
the majority is not surprising. The court of appeals seems to have had a common approach to resolving its cases.
Wachtler voted with the majority most often of all the judges, having the
highest rate of majority agreement in each term (tying with others in two
terms). By contrast, Titone voted with the majority least often in every term,
with the lowest rates of majority agreement (tying in 1987-1988). In addition
to having the lowest rate of majority votes in each term, Titone was the most
prolific dissenter in each term but one (1987-1988).140 Notably, despite his
"disagreeability," Titone agreed with the majority in at least nine out of ten
cases in each term. The other judges fall within the narrow range between
14
Wachtler and Titone. '
B. Civil Cases
The voting pattern of the court of appeals in civil cases resembles that in
the overall plenary caseload. The rate at which civil cases were decided with
all judges in agreement on the rationale ranged between 80% and 85% per
term with concurrences in no more than 6% of the civil cases per term. Dissents appeared in between 13% and 17% of the civil cases per term. 142 The
premium put on agreement in resolving cases on the merits remains
apparent.
This emphasis on consensus also appears in other voting characteristics. 143 All judges in all terms voted with the majority at least 90% of the
time, with the corresponding lack of concurrences and dissents. Wachtler led
or was near the lead in joining the majority the most in each term. Titone
was the judge with the most concurrences and dissents in three terms, with
Bellacosa the leader in the other two terms.' 4 As with the overall caseload,
the court of appeals generally expressed consensus in resolving civil cases.
C. Criminal Cases
In criminal cases, the court of appeals exhibited a bit less consensus than
in the other categories described but only slightly sO. 145 Agreement on the
rationale in resolving criminal cases in four of the five terms was about 75%,
with the rate in 1987-1988 at 90%. Concurrences were written in no more
138.
139.
by Court
140.
141.
142.
143.
See Appendix, Table D.
See Bierman, supra note 64, at 86 (observing that unanimity rate for civil cases decided
of Appeals in recent four-year period was 82-90%).
See Appendix, Table D.
Id.
See Appendix, Table C.
See Appendix, Table E for data on the high degree of voting consensus evidenced by
the court.
144. See Appendix, Table E.
145. See Appendix, Table C for data concerning the number of concurrences and dissents
per category.
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than 10% of the cases per term. Dissents in criminal cases, written in proportionally more cases than in the overall and in civil caseloads in each term but
1987-1988, appeared in about 20% of the cases in each term, except for that
first term with only a 7% dissent rate. 146 Even though the criminal cases
were more contentious than civil cases, consensus prevailed.
These trends also are seen in other aspects of voting patterns in criminal
cases.1 47 Almost all judges in all terms voted with the majority at least 90%
of the time, with a correspondingly low rate of concurrences and dissents.
The exceptions are Titone, who voted with the majority less than 90% of the
time in all terms except 1987-1988, and Alexander, who voted with the majority 89% of the time in 1988-1989. Wachtler was the judge most often with
the majority in each term except 1987-1988, when he was just behind Simons,
the leader that term. Titone registered the most concurrences and dissents
each term. 148 The court was rather agreeable in criminal cases, as in overall
and civil cases.
D. Civil Rights and Liberties Cases
The court's emphasis on consensus seems to have broken down slightly
in the civil rights and liberties cases. 149 Only slightly more than one-half of
these cases were decided without separate concurrences and/or dissents, with
concurrences in about 10% of them and dissents in just over one-third. 150
Most of the judges, however, agreed with the majority most of the time, with
joinder with the majority between 79% and 89% of the time. 15 ' The extent
of agreement for most judges is apparent. Wachtler did not lead the group in
joining the majority in these cases, but he was only slightly behind Simons,
the leader in this category, and tied with Hancock. Titone most frequently
concurred and dissented, but even he agreed with the majority about fourfifths of the time. 152 In these cases, the court of appeals seems to have been
seeking consensus, even though it eluded the court half the time.
E. Judicial Federalism Cases
The court's inability to reach consensus appears most evident in judicial
federalism cases. 153 All judges agreed to a single opinion in only about onefourth of these cases; there were concurrences in about 20% of these cases
146. See Appendix, Table C.
147. See Appendix, Table F for data showing voting patterns in criminal cases.
148. Id.
149. See Appendix, Table C for data pertaining to the concurrences and dissents in civil
rights cases.
150. See Appendix, Table C.
151. See Appendix, Table G.
152. Id.
153. See Appendix, Table C. See also People v. Scott, 593 N.E.2d 1328, 1326 (N.Y. 1992)
(Kaye, J., concurring) (observing that state constitutional law cases fractured court more than
any other issues in past decade).
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and dissents in about two-thirds. 154 Likewise, the judges' failure to join in
the majority is more evident in this category than the others. 155 Four judges
(Wachtler, Simons, Alexander, and Hancock) agreed with the majority in between 80% and 87% of these cases and three judges (Kaye, Titone, and Bellacosa) voted with the majority only two-thirds of the time or less, although
no judge voted with the majority less than 58% of the time. Wachtler was
with the majority the most often and Titone the least, although Kaye and
56
Bellacosa registered only one less concurrence and dissent than Titone.1
The court apparently encountered difficulty in finding common ground in
these cases.
F Cuomo Agenda Cases
The judges also disagreed about the resolution of Cuomo Agenda
cases.1 5 7 The court was in agreement without separate opinions in these
cases only slightly less than one-half of the time. Although concurrences
were rather infrequent, dissents appeared in about half of these cases. 158 The
judges' rather variable voting patterns also illustrate the difficulty in reaching
argreement in these cases. 159 Three judges (Wachtler, Simons, and Kaye)
joined the majority in more than 90% of these cases; two judges (Alexander
and Bellacosa) joined the majority 82% of the time; and two judges joined
the majority less than 75% of the time (Hancock at 74% and Titone at
68%).160 Titone, thus, concurred and dissented the most in these cases.
Rather sharp divisions in the voting patterns appear in these cases.
G. Assessment
The court of appeals' strong preference for unanimity in outcome has
been recognized 16' and apparently is long standing.' 62 The judges' voting
patterns in the broad case categories tend to confirm this tendency for con154. See
155. See
categories.
156. See
157. See
Appendix, Table C.
Appendix, Table G for data concerning voting patterns in specific subject
Appendix, Table G.
Appendix, Table C for data concerning the voting patterns in the Cuomo Agenda
cases.
158. See Appendix, Table C.
159. See Appendix, Table G for data pertaining to voting patterns in Cuomo Agenda cases.
160. See Appendix, Table G.
161. See Bierman, supra note 64, at 86 (observing that unanimity rate for civil cases decided
by Court of Appeals in recent four-year period was 82-90%).
162. See Jones, supra note 41, at 551 (expressing preference for unified view); McCrate et
al., supra note 39, at 178-81 (illustrating low number of concurring and dissenting opinions in
cases decided between 1933 and 1971); Posner, supra note 39, at 80 (noting scarcity of concurring
or dissenting opinions written by Cardozo court); id. at 13 (describing Cardozo era as "example
of civility" with no angry dissents); Spencer, supra note 42, at 2 (recognizing high level of con-
sensus in Court of Appeals' decisions).
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sensus. 163 The judges' agreement in a single opinion in 80% or more of the
overall cases per term, and in about the same rate in civil and criminal
cases, 164 demonstrates that New York's high court judges have little propensity to express individual views. This preference for consensus stands in
marked contrast to the U.S. Supreme Court's decisions, which far more often
than not are marked by concurrences and dissents and a fair number of
pluralities.
The small number of concurrences and dissents and the high rate of
agreement with the majority may be unexpected in light of the court's discretionary jurisdiction, which should have allowed the court of appeals to
choose for its plenary caseload important cases that were potentially divisive.
Certainly this is what has been described as happening with the U.S.
Supreme Court after enactment of the Judges' Bill of 1925.165 The opportunities for concurrences and dissents provided by the court of appeals' discretionary jurisdiction does not seem to have materialized.
The effect of Wachtler's leadership may provide a better explanation for
the minimal amount of concurrences and dissents. Wachtler's expressed emphasis on consensus in decision-making harkened back to the court of appeals' high prestige era under Cardozo, when civility was the norm. 166 As a
savvy, charismatic, and popular chief judge, Wachtler's objective in this regard might well have swayed the court toward agreement. Much like a mirror image of Chief Justice Stone, who has been described as affording U.S.
Supreme Court justices greater opportunity for expressing individual views,
Wachtler's influence in promoting consensus is a distinct possibility. Of
course, this high rate of consensus remained evident even in 1990-1991 and
1991-1992,167 the terms when Wachtler might have been distracted from
court duties, creating a vacuum in which more concurrences and dissents
might have been possible. Wachtler's leadership, then, may not provide a
complete explanation.
Another related possibility is that the judges' common backgrounds and
perspectives have constrained any impulses to express disagreement. Having
been socialized in the state's lower judiciary, most of the court of appeals
judges can be seen as adhering to familiar voting patterns; the appellate division has been viewed as deciding most cases without separate expressions
through concurrences and dissents. 16 8 Moreover, these judges themselves
163. See Appendix, Table C for data confirming the high degree of consensus among
judges.
164. See Appendix, Tables E-F.
165. See Halpern & Vines, supra note 13, at 471 (noting that dissents were written in twothirds of Supreme Court cases in 1975).
166. See supra notes 39-42 and accompanying text for a discussion of the civility of the New
York Court of Appeals at various points in its history.
167. See Appendix, Table C for data confirming the high degree of consensus on the court
even during 1990-1991 and 1991-1992 terms.
168. See Luke Bierman, Are Five Heads Better than Three?: A Case for Three Judge Panels
for the New York Supreme Court,Appellate Division, 56 ALB. L. REv. 147, 153 (1992) (observing
that appellate division department decided 97.2% of cases unanimously in 1991).
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may well have been emulating the traditional civility of the court of appeals'
golden years under Cardozo and Fuld in the hope of accomplishing a similarly important role for the court. Possibly, then, the court of appeals judges
stifle individual expression because such a pattern of conduct is expected in
the New York judiciary.
This expectation for consensus at the New York high court contrasts
with the prevailing practice of divided opinions at the U.S. Supreme
Court, 169 despite the fact most judges on both courts now have experience on
lower courts where unanimity is the norm. The Supreme Court, in contrast
to the New York Court of Appeals, now has a long tradition of dissension
that may effectively undercut the justices' previously internalized expectation
for agreement. The influence of norms and expectations appears strong.
If this is so, Titone and Bellacosa offer interesting contrasts. As already
noted, Titone has been the court's most prolific voter outside the majority,
usually in dissent. 170 Titone's experience in the appellate division, where individual expression through separate opinions is unusual, would seem contrary to his "high" dissent rate at the court of appeals; however, Titone's
"high" dissent rate pales in comparison to the U.S. Supreme Court's most
prolific dissenters. 171 Nonetheless, Titone's tendency for individual expression comports with voting patterns at the U.S. Supreme Court after the enactment of the Judges' Bill of 1925,172 albeit in a less extreme manner. The
number of Titone's concurrences and dissents has not seemed to cause much
concern as there has been little comment on his propensity in this regard.
In contrast, the number and rate of Bellacosa's concurrences and dissents fell typically within the mid-range of the court of appeals judges and
nowhere near the high rates of separate voting at the U.S. Supreme Court.
Nonetheless, some of Bellacosa's separate writings stand out as harsh and
angry in tone, 173 certainly different from the concurrences and dissents of
other court of appeals judges. These expressions by Bellacosa can easily be
characterized as the kind of judicial writings that have engendered criticism
from leading jurists.' 74 Moreover, Bellacosa's writings are particularly note169. Howard's study of the Courts of Appeals of the United States reveals that most of the
decisions of these federal courts are unanimous. J. WOODFORD HOWARD, COURTS OF APPEALS
IN THE FEDERAL JUDICIAL SYsTEM 42, 193-96 (1981) (examining conflict in circuit courts); see
also RIC-ARD J. RICHARDSON & KENNETH N. VINES, THE POLITICS OF FEDERAL COURTS 134-
38 (1970) (comparing rates of dissent in circuit courts to rate of dissent in Supreme Court).
170. See Appendix, Table D for data showing Titone's propensity for separate opinions.
171. See, e.g., O'BRIEN, supra note 14, at 341 (calculating that average rates of dissents per
term range from .9 to 38.5% of cases for Supreme Court justices).
172. See Halpern & Vines, supra note 13, at 134-38 (describing voting patterns after 1925).
173. They have not gone unnoticed by commentators. See, e.g., Eve Cary & Mary Falk,
People v. Scott and People v. Keta: Democracy Begins in Conversation, 58 BROOK. L. REV.
1279, 1284 (1993) (characterizing one of Bellacosa's dissents as "infuriated" and "scolding");
Stephen Wasby, Judicial Federalism and State Protection Against Searches: Once Again in the
New York Court of Appeals, 4 ST. CONST. COMM. & NOTES 1, 3-4 (1993) (describing Bellacosa's
dissent as forceful and angry, "characteristic of his other dissents").
174. See Ginsburg, supra note 43, at 1196-98 (recommending collegiality in appellate deci-
sion-making); Miner, supra note 43, at 107 (noting lack of consensus among Supreme Court
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worthy on a court like the court of appeals, which usually decides cases in a
and traditionally has emphasized civility in its opinion
single opinion
175
writing.
It is relatively easy to trace the development of Bellacosa's distinctive
separate writings. As early as his first full term on the court, Bellacosa wrote
strongly phrased opinions, especially when writing alone. In Boreali v. Axelrod,176 Bellacosa was the sole dissent from the court's holding that the state
Public Health Council had exceeded its statutorily delegated authority in
promulgating regulations against smoking in public. 177 Bellacosa chastised
the court for the practical effect of its decision, writing that the Public Health
Council's efforts to protect nonsmokers "is crushed without analytical or
precedential justification. That is the human dimension of this case which the
court cannot avoid, however awkwardly it tries, by its dry doctrinal discussion."'1 78 His placing of blame on the court's majority for any detrimental
public effects of the court's decision is as remarkable as his use of an exclamation point in his argument, 179 considering the usual congeniality of court
of appeals opinions.
Similarly, in People v. Harris,180 Bellacosa, this time joined in dissent by
Wachtler, criticized the majority for adopting a state constitutional rule more
protective of individual rights than required by federal constitutional search
and seizure doctrine, writing that the majority had "to stretch precedent and
twist logic" to reach its result. 18 1 He further accused the majority of intellectual and analytical inconsistency, and of engaging in "institutional egocentricity, a kind of Copernican view of the judicial universe.' 182 This type of
critical exposition apparently has contributed to Bellacosa's distinctive writings that can be characterized as disagreeable and not judicious. On a court
that traditionally has prided itself on consensus and congeniality, the harsh
tones of some of Bellacosa's separate opinions stand in marked contrast to
the norm.
Bellacosa does not, however, always exhibit this vehemence or discordant tone in his dissents. He has also offered dissenting views in the court's
opinions). Interviews conducted by the author of some judges on the Court of Appeals of New
York who have served before and during Bellacosa's tenure confirm that the tenor of some of
Bellacosa's separate opinions were troublesome. This is consistent with the views expressed by
Bellacosa's colleagues in some of the opinions. See, e.g., People v. Scott, 593 N.E.2d 1328, 1346
(N.Y. 1992) (describing Bellacosa's dissent as "remarkable").
175. See supra notes 39-43 and accompanying text for a discussion of the unanimity and
consensus which has been evident on the Court of Appeals of New York.
176. 517 N.E.2d 1350 (N.Y. 1987).
177. Id. at 1358-60 (Bellacosa, J. dissenting).
178. Id. at 1360 (Bellacosa, J., dissenting).
179. See id. (Bellacosa, J., dissenting) ("Surely, if the greater power exists, the lesser, as
responsibly exercised here, should not be forbidden!"). Exclamation points are rarely employed
in judicial opinions.
180. 570 N.E.2d 1051 (N.Y. 1991).
181. Id. at 1058 (Bellacosa, J., dissenting).
182. Id. at 1059 (Bellacosa, J., dissenting).
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more usual civil style. For example, in People v. Moquin,'18 3 his dissent,
which was joined by Simons, is a rather straightforward essay on the manner
in which he would have decided the case, together with objective deficiencies
in the majority's rationale. 184 These opinions by Bellacosa, joined by a judge
other than his close friend and apparent ideological ally Wachtler, who may
be able to influence the tenor of the opinions, are more restrained in tone
and closer to the more "civil" dissent that garners greater acceptance in conventional judicial circles, especially those at the court of appeals.
That some of Bellacosa's separate opinions were of this more civil
sort 185 may only serve to draw attention to his more strident writings, which
can be denigrated as failing to exhibit collegiality by those more accustomed
to consensus and civility. Bellacosa's meteoric rise from nonjudicial Clerk
and Counsel of the New York Court of Appeals to associate judge' 86 might
well have affected the way in which he expressed himself in separate opinions. Clearly his path to the bench is unique among the members of the
court, all of whom had significant practical experience in the state judicial
system as a practicing judge and/or attorney before appointment to the court
of appeals. This prior service could easily have left these judges fully socialized to the standard operating procedures of the New York judicial system,
such as acting in more collegial and congenial ways when exercising their
independent decision-making authority on the court of appeals.
Without prior practical experience in private legal practice or as a trial
or appellate judge, 187 Bellacosa had not undergone the socialization that can
contribute to more experienced members of the bench and bar conforming to
prevailing patterns of conduct. Indeed, Bellacosa's extensive experience as
Clerk and Counsel of the Court of Appeals and as Chief Administrative
Judge with oversight and supervisory responsibilities vis-a-vis other judges
may have inhibited his acuity in adapting to prevailing practices. It is noteworthy that Bellacosa seems to have tempered his remarks when faced with
some influence from certain colleagues, as in People v. Moquin, 188 which may
seem comparable to how Chief Justice Rehnquist's conservative rhetoric has
become more restrained with the demands of leadership.' 8 9 The interplay of
leadership, influence, and socialization at the court of appeals thus can be
seen in Bellacosa's tendencies in writing separate opinions.
183. 570 N.E.2d 1059 (N.Y. 1991).
184. Id. at 1064-65 (Bellacosa, J., dissenting).
185. See, e.g., People v. Davis, 526 N.E.2d 20, 24-25 (N.Y. 1988) (Bellacosa, J., dissenting)
(reciting competing views of evidence in dissent joined by Wachtler and Alexander).
186. Bellacosa left his nonjudicial position at the Court of Appeals of New York in 1983 to
join the faculty of the Albany Law School. Two years later, he was selected by Wachtler as
administrative head of the New York court system, and his appointment to the Court of Appeals
came less than two years later.
187. See supra notes 65 and 186, and accompanying text, for a description of the career path
of Judge Bellacosa.
188. 570 N.E.2d 1059, 1064-65 (N.Y. 1991) (Bellacosa, J., dissenting).
189. See Guliuzza, supra note 27, at 155-56 (suggesting that Chief Justice Rehnquist soft-
ened tone in 1987 and 1988 to enhance effectiveness as leader).
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In the more specific subject categories, the judges' voting patterns can be
characterized as somewhat different than in the more broad categories.
There is a greater propensity for the judges to vote independently through
concurrences and dissents in the civil rights and liberties cases, the judicial
federalism cases, and the Cuomo Agenda cases. 190 Indeed, the data clearly
support Kaye's acknowledgement that the court's inability to reach consensus is most apparent in judicial federalism cases. 19 1
An obvious possible explanation for this greater propensity for disagreement in these cases is that the court's discretionary jurisdiction provided increased opportunity for choosing more contentious cases. This possibility,
however, does not find much support from the broader case categories,
where there is little dissension despite broad discretion to choose similarly
contentious cases. Also, certain of the specific subject categories, such as the
civil rights and liberties cases, did not engender nearly as many disputes as
others, such as the judicial federalism cases. The effect of the court of appeals' discretionary jurisdiction may not adequately explain the greater dissension in the more specific case categories considering the overall high
unanimity rate. After all, the U.S. Supreme Court exhibited a greater propensity for dissent after it received discretion over its plenary caseload.
Perhaps certain specific subjects, such as judicial federalism, presented
particular difficulties for some judges because they had to resolve competing
motivations. For example, in the judicial federalism category, the judges
faced particularly difficult questions about fundamental aspects of society in
the context of state constitutional analysis, an area of law that was receiving
increasing attention and criticism and that provided easy, if superficial, comparisons to federal constitutional analysis. The pressures to elaborate the developing concepts and ideas may have contributed to more frequent
concurrences and dissents. If so, Wachtler's rhetoric favoring independent
state constitutionalism, combined with his voting preference for federal constitutional doctrine, might have presented mixed signals to those judges who
supported independent state constitutional grounds but also felt deference to
the chief judge. Attempting to reconcile these competing motivations, in addition to the other pressures described above, might have contributed to
these judges feeling compelled to explain themselves in concurring or dissenting opinions.
Indeed, it appears that Kaye and Titone, whose votes express perhaps
the strongest commitment to independent state constitutionalism, resolved
these dilemmas by often casting concurring and dissenting votes; Hancock,
who lacked commitment to any particular approach in judicial federalism
cases, might have been more amenable to follow the majority. Simons, who
preferred to address federal doctrine before even considering the applicabil190. See Appendix, Table C for data revealing higher percentage of concurrences and dissents in these types of cases.
191. See People v. Scott, 593 N.E.2d 1328, 1346 (N.Y. 1992) (Kaye, J., concurring) (noting
that court was unusually split in state constitutional law cases).
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ity of the state constitution, found refuge with a majority that usually followed federal rules.
Bellacosa's tendency to concur and dissent in judicial federalism cases
even though his votes reveal strong agreement with the court's preferred federal position perhaps is more difficult to explain. Some of Bellacosa's most
strongly worded writings emerged in judicial federalism cases and did not
escape the criticism of his colleagues. For example, in the companion cases
of People v.
Scott1 9 2
and People v. Keta, 1 93 the court of appeals confronted
the question of whether the state constitutional proscription against unreasonable searches and seizures' 94 permitted warrantless searches of "open
fields" and vehicle dismantling businesses, which the U.S. Supreme Court
had held authorized under the Federal Constitution. 195 In deciding that the
state constitution provided greater protection of individual rights and liberties than the Federal Constitution, a four-judge majority reviewed the particular circumstances affecting New York's guarantee against unreasonable
searches and seizure and rejected the Supreme Court precedent permitting
the warrantless searches.
In dissent, Bellacosa suggested that the court of appeals' "declaration of
independence from the Supreme Law of the Land ...propels the Court
across a jurisprudential Rubicon into a kind of Articles of Confederation
time warp."'1 96 Bellacosa rejected the majority position "because no appro-
priate basis, unique to New York, has been advanced warranting this doublebarrelled declaration of peculiar New York-style separatism."' 97 In response
to this strongly worded indictment of the majority's actions, Kaye wrote a
concurrence noting, perhaps charitably considering Bellacosa's propensity
for acerbic opinions, that the dissent "is distinctive only in the tone of its
expression.' ' 98 In eloquent terms that stand in marked contrast to the tenor
of Bellacosa's dissent, Kaye proceeded to justify independent state constitutional decision-making as appropriate under the federal constitutional
system.
Several factors may explain the extreme tone expressed by Bellacosa in
these state constitutional cases. First, this kind of case would have presented
particular difficulties for Bellacosa if his earlier-expressed support for independent state constitutionalism was sincere.' 99 Trying to justify as a matter
of state law the adoption of conservative federal constitutional doctrine in
192. 593 N.E.2d 1328 (N.Y. 1992).
193. Id.
194. N.Y. CONST. art. I, § 12.
195. See New York v. Burger, 482 U.S. 691, 716 (1987) (holding search of junkyard without
warrant constitutional); Oliver v. United States, 466 U.S. 170, 177 (1984) (holding warrantless
search of open field constitutional).
196. Scott, 593 N.E.2d at 1348 (Bellacosa, J., dissenting) (citing People v. Harris, 570 N.E.2d
1051 (N.Y. 1991) and People v. Reynolds, 523 N.E.2d 291 (N.Y. 1988)).
197. Id. at 1349 (Bellacosa, J., dissenting).
198. Id. at 1346 (Kaye, J., concurring).
199. See Bellacosa, supra note 35, at 16 (expressing strong support for decisions based on
state constitutions).
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light of the court of appeals' traditionally independent, progressive approach
and his own public acknowledgment of the value of independent state
constitutionalism might have provoked the dissenting diatribe.
Also, Scott and Keta were decided during the time that Wachtler's distraction from the court's work (due to the budget battle with the Governor
and his own criminal conduct) might have been at its zenith, thereby providing Bellacosa with additional incentive to provide a strongly worded justification for a position that his long-time friend, the chief judge, could join, as
Wachtler did. It similarly is worth noting that Simons, a serious and skillful
jurist, 20 0 uncharacteristically joined Bellacosa's strongly worded dissent in
these cases; 20 1 Simons never joined another dissenting or concurring opinion
authored by Bellacosa in the judicial federalism cases, despite similar preferences in these kinds of cases. 20 2 Indeed, contrary to the court of appeals'
usual practice whereby the junior judges have responsibility for writing dissents,20 3 Simons, the more senior jurist, authored the separate opinions in
judicial federalism cases where Simons and Bellacosa expressed views different from those of the majority. 2° 4 It was, however, during the period when
Scott and Keta were being considered that Simons' wife was administered
drugs improperly during a hospitalization and tragically and unexpectedly
200. See, e.g., Bonventre, supra note 9, at 1164 n.5 (commending interim leadership of court
by Judge Simons) (citing Gary Spencer, Kaye is Selected Chief Judge by Governor, N.Y. L.J.,
Feb. 23, 1993, at 1).
201. People v. Scott, 593 N.E.2d 1328, 1348-56 (N.Y. 1992) (Bellacosa, J., dissenting).
202. See, e.g., People v. Torres, 543 N.E.2d 61 (N.Y. 1989) (Bellacosa, J., dissenting); People
v. Luna, 535 N.E.2d 1305 (N.Y. 1989) (Bellacosa, J., concurring); People v. Bell, 535 N.E.2d 1294
(N.Y. 1989) (Bellacosa, J., dissenting).
203. Opinion and dissent writing assignments at the New York Court of Appeals are made
in accordance with a long-standing tradition that is decidedly low tech. At the conclusion of a
session of oral argument, each judge, in order of seniority, randomly chooses an index card on
the back of which the name of a case that was argued is written. The judge becomes responsible
for preparing an initial report on that case, which will provide the basis for preliminary discussion about the case during the court's conference. The conference discussion proceeds in reverse
order of seniority, with voting also accomplished in this manner. If the judge initially reporting
retains a majority, that judge typically will write the court's opinion; otherwise, the most junior
judge in the majority receives that assignment. If a dissent is to be written, the first judge raising
disagreement, usually a judge with lesser seniority considering the way discussion and voting
proceed, will draw that assignment. See generally Frank H. Hiscock, The Court of Appeals of
New York: Some Features of its Organizationand Work, 14 CORNELL L. REV. 131, 138 (1929)
(explaining that Court of Appeals judges receive cases by rotation); Judith S. Kaye, The Importance of State Courts: A Snapshot of the New York Court of Appeals, 1994 ANN. SUR. AM. L. xi,
xii-xiii (describing process of decision-making in Court of Appeals). Contra Melinda G. Hall,
Opinion Assignment Proceduresand Conference Practices in State Supreme Courts, 73 JUDICATURE 209, 212 (1990) (arguing that procedure for assigning cases in New York Court of Appeals
is "random assignment after consideration of case merits and tentative votes").
204. See, e.g., People v. Dunn, 564 N.E.2d 1054, 1059 (N.Y. 1990) (dissent authored by
Simons), cert. denied, 501 U.S. 1219 (1991); People v. Vilardi, 555 N.E.2d 915, 915 (N.Y. 1990)
(same). The data further indicate that Simons did not join in any Bellacosa-authored dissent or
concurrence in the "Civil Rights and Liberties" and "Cuomo Agenda" categories.
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died. 2 05 This personal catastrophe might well have distracted Simons' attention and thereby inhibited him from exerting restraint to temper the tone of
Bellacosa's language or even taking over the dissent writing responsibility.
These circumstances suggest that a variety of factors contributed to these
judicial federalism opinions. The impact of ideological predispositions and
conformity to standard operating procedures interacted in ways that contributed to a highly unusual exchange at the court of appeals. Although these
factors mirror those identified as affecting the patterns and preferences in the
more specific case categories, their combination or presence in cases involving questions of fundamental importance-the state constitution-that had
been addressed by at least some of the judges in extrajudicial writings might
have affected the decision-making in distinctive ways. Thus the tenor of Bellacosa's dissent in Scott and Keta might not have been particularly unusual
for him, especially considering his relationship with the distracted chief
judge, but Simons' tacit endorsement of it and the strongly worded responses
to it are unique in the annals of the usually congenial court of appeals. From
these perspectives, the effects of leadership, influence, and socialization on
state constitutional decision-making become apparent.
Thus we see that, although the court of appeals clearly emphasized consensus in its decision-making, in the more specific subject categories, and especially in the judicial federalism category, agreement by all seven judges was
more elusive. 2°6 This suggests that the court of appeals' jurisdictional control
over its plenary caseload did not promote divided decision-making. Titone,
the court's "rebel" with the most concurrences and dissents, voted with the
majority in most cases in most categories. 20 7 Even Bellacosa's intemperate
language did not infect all his separate opinions. The court of appeals seems
to have emphasized consensus despite its ability to choose for its plenary
caseload the important cases that can provoke disagreement. Unlike the
U.S. Supreme Court, where discretionary jurisdiction promoted divided decision-making, the court of appeals' voting patterns do not seem to be a consequence of the court's discretionary jurisdiction.
Rather, it appears that the leadership of the chief judge and the backgrounds of the judges in New York's generally unanimous lower appellate
courts and as observers of the standard operating procedures for the New
York Court of Appeals encouraged consensus and congeniality at New
York's high court. This contrasts with the United States Supreme Court,
where Chief Justice Stone helped entrench common dissenting practices and
where formerly agreeable U.S. Courts of Appeals judges find much to disagree about. Wachtler's objective for consensus is consistent with his usual
votes in the majority, which could have provided leadership by example.
205. Jane Fritsch, Syracuse HospitalAdmits Causing Death of Patient, N.Y. TIMES, May 13,
1992, at B5.
206. See Appendix, Table C for data showing higher number of concurrences and dissents
associated with these categories of cases.
207. See Appendix, Table G for data showing that Titone voted with the majority in most
categories in most cases.
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Most of Wachtler's colleagues' experiences in the lower judiciary, where unanimity seems to prevail, not only could have promoted joining in the majority
but also could have limited their motivation to write concurrences and dissents notwithstanding the court of appeals' discretionary jurisdiction. 208 The
court's traditional emphases on civility, consensus, and deference to the chief
judge also may have contributed to the judges' voting behavior.
The relative lack of agreement seen in the specific subject categories,
especially in the judicial federalism category, can perhaps be attributed to
competing values presented by these cases. The judges had to balance conflicting motivations, including ideological preferences, emphasis on consensus
and congeniality, and deference to the chief judge, which might have resulted
in the higher incidence of concurrences and dissents observed in these cases.
Likewise, these factors might well have contributed to the distinctive disagreeable tenor of Bellacosa's separate writings. The interrelationship of
these factors suggests that decision-making in cases raising state constitutional issues occurs in more complicated and dynamic ways than in other
cases, as additional motivations and pressures must be integrated in the decision-making process.
Yet, the important factors that seem to affect decision-making at the
court of appeals generally-the emphasis on consensus and civility that derives from the court's traditional approach to resolving cases, the background
of judges whose prior experiences largely are in the deferential lower judiciary, and the effects of leadership and influence-play important roles in the
state constitutional cases. The case categories may change and the dynamics
may change, but the basic factors underlying decision-making propensities
remain the same.
V.
VOTING ALIGNMENTS
A. Voting Pairs
1. Overall Cases
The methodology used in this study for determining when pairs of judges
voted together may tend to depress the rates of agreement, which are based
on joinder in opinions and not on joinder in outcomes. The U.S. Supreme
Court has seen interagreement rates between justices as high as 95% and as
low as 4%.209 Notwithstanding these extreme voting patterns, interagree210
ment rates of 70% and 80% have been characterized as rather strong.
These rates provide a basis for assessment of the court of appeals judges'
voting patterns.
208. In contrast to the New York Court of Appeals' essentially discretionary jurisdiction,
the Appellate Division of New York (the state's primary intermediate appellate court, where
four of the seven Court of Appeals judges had previously served) has mostly mandatory juridiction. N.Y. CrIM. PROC. L. art. 450 (McKinney 1994); N.Y. Civ. PR¢c. L. & R. arts. 55, 57
(McKinney 1994).
209. WASBY, supra note 14, at 255-56.
210. Id. at 257.
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Some definite voting alignments can be discerned from looking at the
rates at which each judge joined another judge in support of particular opinions in cases with concurrences and dissents in the overall caseload. 2 11 In
three of the five terms studied, the pair most often in agreement was Wachtier and Bellacosa; in the other two terms, it was Wachtler and Simons, with
the Wachtler and Bellacosa pair a close second. In three of the five terms,
the pair least often in agreement was Titone and Bellacosa; in one of the
other terms it was Alexander and Bellacosa, and it was Hancock and Bellacosa in the other term. Rates of agreement varied for other pairs in other
terms; for example, agreement of voting pairs involving Kaye, Alexander,
Titone, and Hancock would fluctuate from term to term, without discernable
pattern. The extent of each of these four
judge's agreement with Wachtler
2 12
and Simons also seemed rather variable.
These voting alignments are further seen in the voting pair data for all
cases with concurrences and dissents in the 1987-1992 terms. 21 3 The pair of
Wachtler and Bellacosa agreed more often than any other pair, with the
Wachtler and Simons pair close behind. The pair of Titone and Bellacosa
had the least agreement, with the Hancock and Bellacosa pair and Titone and
Simons pair in agreement nearly as infrequently. The variability of agreement of other pairs apparently put them in between the extremes exhibited
21 4
by these pairs.
Titone and Bellacosa issued sole concurrences and dissents most often.
Wachtler was the least likely to be voting alone, even failing to vote alone
once during whole terms. The other judges were closer to Wachtler than
Titone and Bellacosa in their propensities to vote independently of any other
2 15
judge.
2. Civil Rights and Liberties Cases
In these cases, Wachtler and Bellacosa are the pair with the most agreement. 2 16 The pairs of Simons and Hancock, Wachtler and Simons, Wachtler
and Hancock, and Wachtler and Kaye also show high agreement. On the
other hand, the pair of Wachtler and Titone and Simons and Titone are in
agreement least often, with Titone and Hancock and Titone and Bellacosa
agreeing almost as infrequently. Again, Titone and Bellacosa vote alone
21 7
most frequently.
211. See Appendix, Tables H-L for data concerning the voting alignments found in the five
terms studied.
212. See Appendix, Tables H-L.
213. See Appendix, Table M for data concerning voting alignments in concurrences and
dissents over the five terms studied.
214. See Appendix, Table M.
215. Id.
216. See Appendix, Table N for data concerning voting alignments in the civil rights and
liberties cases.
217. See Appendix, Table N.
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3. Judicial Federalism Cases
In the particularly contentious judicial federalism category, Wachtler
and Simons are the pair most often in agreement, with the pairs of Kaye and
Alexander, Wachtler and Bellacosa, and Simons and Bellacosa agreeing almost as often. 2 18 Titone and Bellacosa agree least often, with the pairs of
Simons and Titone and Kaye and Bellacosa agreeing almost as infrequently.
Titone and Bellacosa again voted alone most often.
4. Cuomo Agenda Cases
In the Cuomo Agenda cases, Wachtler and Simons are the pair agreeing
most often. 219 Titone and Bellacosa are the pair in agreement the least.
voters, with
Again, Titone and Bellacosa are the most frequent independent
220
Simons the only other judge voting alone in this category.
5. Assessment
The juxtaposition of pairs involving Wachtler, Simons, and Bellacosa as
those with the highest agreement and of pairs involving these three judges
with Titone as those with the lowest agreement in several categories is noteworthy. Wachtler, Simons, and Bellacosa had the court's most conservative
preferences in several categories, with Titone seen as the most liberal. The
high amount of agreement by pairs made up of the former judges and the low
amount of agreement when they are paired with the latter judge tend to confirm that these judges did not have similar approaches in the most divisive
cases. When these judges disagreed, they seem to have really disagreed, in
contrast to the more moderate voting agreement of most other pairs.
Wachtler's influence as chief judge on colleagues who had previous experience in the New York judicial system and were well-steeped in the mores
of the court of appeals might well have been at work here. If Wachtler,
Simons, and Bellacosa presented a core conservative position, Wachtler's
leadership might have provided the element necessary to convince others to
vote in agreement and thereby attain a majority. The amount of agreement
of Kaye, Alexander and Hancock in pairs with Wachtler and Simons are variable and could have supported this scenario. In this way, Wachtler's leadership, exerted on judges with substantial experience in subordinate roles in the
judicial system that emphasize deference to higher judicial authority and who
perhaps were influenced by the tradition of deference to the chief judge of
the court of appeals, could have been an effective tool in forging the majority
necessary to score conservative preferences.
Bellacosa's role in this scenario does not lend itself to an easy explanation. On the one hand, Bellacosa offered Wachtler a handy ally who could
218. See Appendix, Table 0 for data revealing voting alignments in judicial federalism
cases.
219. See Appendix, Table P for data concerning voting alignments in the Cuomo Agenda
cases.
220. See Appendix, Table P.
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have assisted in executing Wachtler's leadership roles, as associate justices
have enhanced chief justices' leadership capabilities on the U.S. Supreme
Court. On the other hand, Bellacosa's independence in opinion writing, as
seen in his distinctive separate expressions, might well have undermined this
role for him on the court of appeals. Bellacosa did not exhibit particularly
high rates of agreement (certainly not as high as Wachtler) with Kaye, Alexander, or Hancock. Bellacosa's independent, sometimes acerbic approach to
cases might have put off these judges, even if their agreement with Wachtler
indicates that they were not consistently put off by a conservative position or
by Wachtler's tendency to join Bellacosa. The power and prestige of the
chief judge might well have made the difference despite Bellacosa's presence.
In this view, Simons might have taken on a particularly important role
on the court of appeals. Despite his consistently conservative preferences,
Simons shows moderately high, albeit variable, agreement with others, except maybe Titone. Simons might have provided the bridge to the other
judges in reaching consensus for the conservative positions. As suggested
earlier, he might also have served as a restraining influence on Bellacosa, at
least with regard to the harsh tone of some of the latter's opinions. Simons'
effect in this regard might be particularly apparent in People v. Scott 22 1 and
People v. Keta,222 the sharply divided judicial federalism cases in which Bellacosa wrote the very terse, belligerent dissent. Simons uncharacteristically
concurred in this acerbic dissent, but, the case was decided during the period
of deep personal tragedy for Simons when his wife had tragically and unexpectedly died. Simons' probable distraction during this period would explain
Bellacosa's diatribe despite the joinder of Simons, whose capacity to restrain
Bellacosa already has been mentioned. This episode may well indicate
Simons' important role as a moderating influence on the court's opinion writing, which might have provided means for garnering support for particular
outcomes in particular cases.
Interestingly, Titone and Bellacosa were the most frequent lone voters.
In occupying the opposite ends of the court's ideological preferences, these
judges developed independent approaches to the court's most contentious
cases, much like how the most ideologically charged of the U.S. Supreme
Court justices have acted. Even though Titone may have been as dogmatic as
Bellacosa, perhaps even more so since he voted alone more often, Bellacosa
exercised his prerogatives in a manner distinctive for its disagreeability. The
harshness of Bellacosa's opinions stands out in a court atmosphere imbued
with consensus, civility, and moderation. The different backgrounds of these
judges-Titone as a career jurist and Bellacosa as a neophyte-may explain
these different approaches to opinion writing.
221. 593 N.E.2d 1328 (N.Y. 1992).
222. Id.
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NEW YORK COURT OF APPEALS
1443
B. Voting Blocs
Voting blocs can be identified in the overall plenary caseload2 23 and in
the criminal caseload2 2 4 during these terms. In the overall caseload, only
three blocs seem to exist. At a level of moderate cohesiveness are blocs consisting of Wachtler and Bellacosa and of Alexander and Titone. Alexander,
Titone, and Hancock comprised a bloc of low cohesiveness. 2 2 5 In the criminal caseload, more blocs emerge. Wachtler and Bellacosa exhibit a bloc of
high cohesiveness; of medium cohesion are blocs of Alexander and Titone
and of Alexander, Titone, and Hancock. Blocs of low cohesion consist of
Wachtler and Simons; Wachtler, Simons, and Bellacosa; Kaye, Alexander,
Titone, and Hancock; Kaye and Titone; and Titone and Hancock.2 26
These blocs seem to support several of the observations already made.
Wachtler and Bellacosa presented a formidable alliance because of their high
cohesiveness and the opportunities for influence available to the chief judge.
Simons' inclusion in blocs with these judges, even at low cohesiveness, further reveals his importance to the conservative wing of the court. Although
the blocs consisting of Kaye, Alexander, Titone, and Hancock might have
succeeded in swaying the court, these blocs exhibited lower cohesiveness
that allowed for the more variable voting patterns and alignments seen with
these judges. Moreover, the preferences of three of these four (excluding
Titone) were less emphatic than those of Wachtler, Simons, and Bellacosa, so
that these judges, even in voting together, might well have moved to join the
conservative judges. Again, the chief judge's influence on a court with judges
of common backgrounds and shared experiences, including deference to
those in higher office, should not be underestimated.
VI. CONCLUSION
Shortly before she became chief judge of the New York Court of Appeals, Judith Kaye recognized that state constitutional law cases divided the
court like no others but she left for later consideration whether "this is a
consequence of the 'new' judicial federalism and a process of hammering out
approaches and methodologies to accommodate it, or the consequence of
other factors. '22 7 Perhaps recognizing the importance of Kaye's challenge,
there has been no shortage of scholarly criticism of the manner in which state
courts have begun developing state consititutional jurisprudence,22 8 including
that occurring in New York. 22 9 This article provides a different perspective
223.
224.
225.
226.
227.
See Appendix, Table Q for data on voting blocs evidenced on the overall caseload.
See Appendix, Table R for data revealing voting blocs in criminal cases.
See Appendix, Table Q.
See Appendix, Table R.
People v. Scott, 593 N.E.2d 1328, 1346 (Kaye, J., concurring).
228. See, e.g., Gardner, supra note 9, at 763-64 (criticizing court's failure to clearly develop
state constitutional law); Tarr, supra note 3, at 843 (surveying two eras of state constitutional
decision-making).
229. See Cary & Falk, supra note 173, at 1279 (criticizing absence of discussion of methodology of state constitutional adjudications in two New York Court of Appeals cases).
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on this problem, by drawing on the work of judicial process scholars to try to
explain the dynamics of how an important state court approaches its judicial
federalism cases. In examining state constitutional decision-making by the
New York Court of Appeals and comparing it to the court's other decisionmaking contexts, this article has attempted a broader understanding of the
motivations and factors affecting state constitutionalism.
The judges of the New York Court of Appeals seem to approach their
cases in remarkably similar ways. The judges generally agree about the party
who should prevail, which translates into few cases decided with concurrences and dissents; this markedly contrasts with the prevailing habit of the
U.S. Supreme Court. This divergence from the nation's high court, despite
similarities in the modes of selecting judges and of choosing cases for plenary
review, suggests that other factors affect the court of appeals judges' voting
propensities. In recognizing that the court of appeals judges share backgrounds in a state judicial system that promotes civility, consensus, and deference as the appropriate modi operandi, the influence of socialization on the
judges' voting behavior is apparent. The distinctive tone of Bellacosa's separate writings stands in contrast to the usually civil expressions by court of
appeals judges, and Bellacosa's unique career path to New York's high court
provides some explanation for his different exercise of certain opinion writing responsibilities.
In cases raising specific issues such as state constitutional questions, the
court of appeals judges exhibit a greater propensity toward disagreement.
The judges' utilization of conflicting approaches to resolve judicial federalism
issues is a most obvious explanation for the court's uncharacteristic lack of
consensus, but the effects of the factors motivating the court's more general
decision-making are also evident. Bellacosa's strong dissent in Scott and
Keta and the response it provoked reflect aspects of decision-making that
were apparent in other cases. The dynamics of state constitutional decisionmaking by the judges of the New York Court of Appeals seem infected by
socialization; the prevailing patterns of conduct and the expected modes of
expression reflect the effects of socialization. Although the mix of the decision-making factors may be different in these judicial federalism cases, their
presence is reflected in the decision-making propensities and thus must be
accommodated when considering how to address state constitutional
jurisprudence.
And, of course, the need to develop firmly grounded jurisprudential rationales for state constitutional decision-making remains. Growth and development of state constitutional adjudication must have some secure doctrinal
bases. A mature understanding of the not so "New Judicial Federalism,"
however, cannot ignore the motivations underlying judicial voting behavior.
These complementary approaches must be developed and integrated if state
constitutionalism is to reach responsible and meaningful adulthood.
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1995]
NEW YORK COURT OF APPEALS
1445
TABLE A
VOTING PREFERENCES-CRIMINAL CASES
Outcome
Court of Appeals
Prosecution
Defendant
Total
Wachtler
Prosecution
Defendant
Simons
Prosecution
Defendant
Kaye
Prosecution
Defendant
Alexander
Prosecution
Defendant
Titone
Prosecution
Defendant
Hancock
Prosecution
Defendant
Bellacosa
Prosecution
Defendant
87-88
88-89
89-90
90-91
91-92
89
72%
35
28%
124
70
63%
41
37%
111
79
67%
39
33%
118
49
59%
34
41%
83
58
50%
57
50%
115
91
73%
33
27%
72
65%
39
35%
80
68%
38
32%
51
61%
32
39%
60
52%
55
48%
88
71%
36
29%
73
66%
38
34%
80
68%
38
32%
52
63%
31
37%
59
51%
56
49%
85
69%
39
31%
68
62%
42
38%
70
59%
48
41%
46
55%
37
45%
54
47%
61
53%
88
71%
36
29%
75
68%
36
32%
67
59%
47
41%
46
55%
37
45%
52
49%
55
51%
84
68%
40
32%
61
56%
48
44%
70
59%
48
41%
43
52%
40
48%
53
46%
62
54%
85
69%
39
31%
67
60%
44
40%
74
63%
44
37%
49
59%
34
41%
54
47%
60
53%
91
73%
33
27%
72
65%
39
35%
83
70%
35
30%
52
63%
31
37%
64
56%
51
44%
NOTE: Not all judges participated in all cases and percentages are of total for judge.
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TABLE B
VOTING PREFERENCES-SPECIFIC SUBJECT CATEGORIES
Outcome
CT
W
S
K
A
T
H
B
39
53%
35
47%
38
56%
30
44%
40
55%
33
45%
29
41%
41
59%
27
38%
45
62%
27
38%
44
62%
36
50%
36
50%
39
55%
32
45%
18
60%
12
40%
22
73%
8
27%
23
77%
7
23%
9
31%
20
69%
12
44%
15
56%
6
23%
20
77%
14
47%
16
53%
22
73%
8
27%
13
37%
22
62%
9
29%
22
71%
14
40%
21
60%
12
36%
21
64%
19
58%
14
42%
20
59%
14
41%
16
52%
15
48%
8
24%
26
76%
Civil Rights &
Liberties
Conservative
Liberal
Judicial
Federalism
Federal
State
Cuomo Agenda
Anti-Cuomo
Cuomo
NOTE: Not all judges participated in all cases and percentages are of total for judge.
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NEW YORK COURT OF APPEALS
1995]
TABLE C
CONCURRENCES AND DISSENTS PER CATEGORY
Category
87-88
Civil
Total
Cases
Cases
All Agree
Cases w/Concur
and/or Dissent
Cases w/
Concur
Cases w/
Dissent
206
176
85%
112
90%
288
87%
30
15%
12
10%
42
13%
4
2%
3
2%
7
2%
27
13%
9
7%
36
11%
147
82%
80
72%
227
78%
33
18%
31
28%
64
22%
6
3%
11
10%
17
6%
31
17%
23
21%
54
19%
144
84%
88
75%
232
80%
28
16%
30
25%
58
20%
10
6%
8
7%
18
6%
22
13%
24
20%
46
16%
142
84%
65
78%
207
82%
28
16%
18
22%
46
18%
2
1%
4
5%
6
2%
26
15%
16
19%
42
17%
135
85%
89
77%
224
82%
23
15%
26
23%
49
18%
1
0%
8
7%
9
3%
22
14%
20
17%
42
15%
39
53%
8
27%
16
46%
35
47%
22
73%
19
54%
8
11%
6
20%
3
9%
27
36%
19
63%
18
51%
Criminal
124
Total
330
88-89
Civil
180
Criminal
111
Total
291
89-90
Civil
172
Criminal
118
Total
290
90-91
Civil
170
Criminal
83
Total
253
91-92
Civil
158
Criminal
115
Total
273
Civil
Rights
Judicial
Federalism
Cuomo
Agenda
74
NOTES:
30
35
Percentages are of total cases.
Because some cases had both concurrences and dissents, the sum of
columns "Cases w/ Concur" and "Cases w/ Dissent" may not total
column "Cases w/ Concur and/or Dissent."
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[Vol. 68
TABLE D
VOTING PATTERNS-OVERALL CASES
Vote
87-88
Majority
Concur
Dissent
88-89
Majority
Concur
Dissent
89-90
Majority
Concur
Dissent
90-91
Majority
Concur
Dissent
91-92
Majority
Concur
Dissent
W
S
K
A
T
H
B
314
97%
1
1%
8
2%
319
97%
1
0%
9
3%
319
97%
2
1%
7
2%
318
97%
0
0%
11
3%
294
95%
1
1%
13
4%
310
95%
1
1%
14
4%
310
95%
5
2%
11
3%
270
96%
3
1%
9
3%
274
95%
1
0%
13
5%
265
95%
1
0%
14
5%
265
93%
4
1%
17
6%
250
90%
5
2%
23
8%
263
93%
6
2%
15
5%
260
91%
6
2%
19
7%
271
96%
3
1%
7
2%
278
96%
4
1%
8
3%
269
93%
4
2%
15
5%
255
94%
3
1%
14
5%
260
91%
7
2%
19
7%
267
94%
6
2%
12
4%
269
95%
4
1%
10
4%
240
97%
0
0%
7
3%
237
94%
3
2%
11
4%
236
95%
0
0%
12
5%
241
95%
0
0%
12
5%
216
90%
3
2%
20
8%
237
94%
2
1%
13
5%
235
96%
3
1%
8
3%
258
97%
2
1%
6
2%
249
96%
2
1%
9
3%
258
96%
2
0%
10
4%
164
91%
2
1%
15
8%
242
90%
4
2%
22
8%
251
94%
3
1%
14
5%
257
95%
2
1%
11
4%
NOTE: Not all judges participated in all cases and percentages are of total for judge.
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NEW YORK COURT OF APPEALS
1995]
TABLE E
VOTING PATTERNS-CIVIL CASES
Vote
87-88
Majority
Concur
Dissent
88-89
Majority
Concur
Dissent
89-90
Majority
Concur
Dissent
90-91
Majority
Concur
Dissent
91-92
Majority
Concur
Dissent
W
S
K
A
T
H
B
192
96%
1
0%
6
3%
196
96%
1
0%
8
4%
199
98%
2
1%
3
1%
198
96%
0
0%
8
4%
182
96%
0
0%
8
4%
191
95%
0
0%
10
%
190
94%
3
1%
9
4%
163
95%
1
1%
7
4%
169
96%
0
0%
8
4%
161
94%
1
0%
10
6%
167
95%
1
0%
8
5%
161
94%
1
0%
10
6%
163
94%
2
1%
8
5%
163
92%
3
2%
11
6%
156
96%
1
0%
6
4%
165
96%
2
1%
5
3%
162
95%
2
1%
6
4%
163
96%
0
0%
6
4%
158
94%
2
1%
8
5%
156
93%
4
3%
7
4%
159
96%
2
1%
4
2%
159
97%
0
0%
5
3%
159
95%
1
0%
8
5%
156
95%
0
0%
9
5%
163
96%
0
0%
7
4%
144
92%
1
1%
12
7%
157
93%
1
1%
11
6%
157
96%
1
1%
5
3%
147
97%
0
0%
4
3%
147
97%
0
0%
4
3%
148
95%
1
1%
6
4%
103
91%
1
1%
10
9%
141
92%
0
0%
13
8%
143
93%
0
0%
11
7%
150
97%
0
0%
5
3%
NOTE: Not all judges participated in all cases and percentages are of total for judge.
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[Vol. 68
TEMPLE LAW REVIEW
TABLE F
VOTING PATrERNS-CRIMINAL CASES
Vote
87-88
Majority
Concur
Dissent
88-89
Majority
Concur
Dissent
89-90
Majority
Concur
Dissent
90-91
Majority
Concur
Dissent
91-92
Majority
Concur
Dissent
A
S
K
A
T
H
B
122
98%
0
0%
2
2%
123
99%
0
0%
1
1%
120
97%
0
0%
4
3%
120
98%
0
0%
3
2%
112
95%
1
1%
5
4%
119
96%
1
1%
4
3%
120
97%
2
2%
2
2%
107
96%
2
2%
2
2%
105
95%
1
1%
5
4%
104
96%
0
0%
4
4%
98
89%
3
3%
9
8%
89
84%
4
4%
13
12%
100
90%
4
4%
7
6%
97
90%
3
3%
8
7%
115
97%
2
2%
1
1%
113
96%
2
2%
3
2%
107
91%
2
2%
9
7%
92
90%
3
2%
8
8%
102
87%
5
4%
11
9%
111
94%
2
2%
5
4%
110
93%
2
2%
6
5%
81
98%
0
0%
2
2%
78
94%
2
2%
3
4%
80
96%
0
0%
3
4%
78
94%
0
0%
5
6%
72
88%
2
2%
8
10%
80
96%
1
1%
2
3%
78
94%
2
3%
3
4%
111
97%
2
2%
2
2%
102
94%
2
2%
5
4%
110
96%
1
1%
4
4%
61
91%
1
2%
5
7%
101
89%
4
4%
9
7%
108
95%
3
3%
3
3%
107
93%
2
2%
6
5%
NOTE: Not all judges participated in all cases and percentages are of total for judge.
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NEW YORK COURT OF APPEALS
1995]
TABLE G
VOTING PATTERNS-SPECIFIC SUBJECT CATEGORIES
W
S
K
A
T
H
B
60
88%
1
1%
7
11%
65
89%
3
4%
5
7%
59
84%
3
4%
8
12%
62
86%
1
1%
9
13%
56
79%
2
2%
13
19%
63
88%
2
2%
7
10%
60
85%
4
6%
7
11%
26
87%
1
3%
3
10%
25
83%
3
10%
2
7%
19
66%
5
17%
5
17%
23
82%
3
11%
2
7%
15
58%
5
19%
6
23%
23
80%
1
3%
5
17%
20
67%
5
17%
5
17%
30
97%
0
0%
1
3%
32
91%
0
0%
3
9%
31
94%
1
3%
1
3%
27
82%
0
0%
6
18%
23
68%
0
0%
11
32%
23
74%
1
3%
7
23%
28
82%
2
6%
4
12%
Vote
Civil Rights
& Liberties
Majority
Concur
Dissent
Judicial
Federalism
Majority
Concur
Dissent
Cuomo
Agenda
Majority
Concur
Dissent
NOTE: Not all judges participated in all cases and percentages are of total for judge.
TABLE H
VOTING PAIRS-1987-1988
OVERALL CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
W
S
K
A
T
H
B
41
42
41
42
40
40
42
NOTES:
W
S
(2%)
63%
(5%)
K
58%
63%
(2%)
A
59%
57%
71%
(2%)
T
51%
40%
56%
58%
(13%)
B
H
51%
58%
59%
60%
45%
(3%)
73%
48%
51%
48%
45%
28%
(19%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
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TABLE I
VOTING PAIRS-1988-1989
OVERALL CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
W
S
K
A
T
H
B
63
63
61
64
61
64
64
NOTES:
W
S
K
A
T
H
B
(0%)
73%
(2%)
67%
58%
(0%)
49%
65%
52%
(6%)
37%
38%
50%
52%
(15%)
52%
68%
59%
53%
49%
(5%)
71%
46%
54%
38%
23%
33%
(17%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
TABLE J
VOTING PAIRS-1989-1990
OVERALL CASES WITH CONCURRENCE AND/OR DISSENT
Total
W
S
K
A
T
H
B
Votes
W
S
K
A
T
H
B
55
58
57
54
58
56
57
(4%)
78%
(5%)
62%
56%
(4%)
49%
56%
59%
(7%)
40%
36%
47%
50%
(21%)
64%
68%
53%
50%
46%
(5%)
71%
67%
49%
47%
32%
44%
(16%)
NOTES:
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
HeinOnline -- 68 Temple L. Rev. 1452 1995
1995]
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NEW YORK COURT OF APPEALS
TABLE K
VOTING PAIRS-1990-1991
OVERALL CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
W
S
K
A
T
H
B
45
46
45
46
45
46
45
NOTES:
W
S
K
A
T
H
B
(0%)
62%
(2%)
70%
49%
(4%)
67%
57%
64%
(0%)
36%
38%
36%
51%
(18%)
62%
59%
53%
52%
47%
(2%)
75%
56%
57%
53%
34%
49%
(7%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
TABLE L
VOTING
PAIRS-1991-1992
OVERALL CASES WITH CONCURRENCES AND/OR DISSENT
Total
Votes
W
S
K
A
T
H
B
49
49
47
36
49
48
49
NOTES:
W
S
K
A
T
H
B
(0%)
73%
(2%)
66%
60%
(6%)
36%
44%
37%
(6%)
45%
37%
40%
56%
(12%)
54%
52%
50%
57%
46%
(10%)
78%
67%
51%
33%
43%
42%
(6%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
HeinOnline -- 68 Temple L. Rev. 1453 1995
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[Vol. 68
TABLE M
VOTING PAIRS-FIVE TERM TOTAL
OVERALL CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
W
S
K
A
T
253
258
251
242
253
H
254
B
257
NOTES:
W
S
K
A
T
H
B
(1%)
71%
(3%)
64%
57%
(3%)
52%
57%
58%
(5%)
41%
38%
46%
53%
(16%)
57%
62%
55%
54%
47%
73%
57%
52%
44%
34%
(5%)
39%
(13%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
TABLE N
VOTING PAIRS-CIVIL RIGHTS AND LIBERTIES CASES
CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
W
S
K
A
T
H
B
34
34
33
33
34
33
35
NOTES:
W
S
K
A
T
H
B
(3%)
64%
(9%)
63%
47%
(9%)
47%
50%
58%
(3%)
36%
36%
44%
53%
(18%)
66%
70%
52%
55%
41%
(9%)
74%
50%
45%
45%
41%
48%
(14%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
HeinOnline -- 68 Temple L. Rev. 1454 1995
1995]
NEW YORK COURT OF APPEALS
1455
TABLE 0
VOTING PAIRS-JUDICIAL FEDERALISM CASES
CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
W
S
K
A
T
H
B
22
22
22
20
19
22
22
NOTES:
W
S
K
A
T
H
B
(0%)
86%
(5%)
45%
41%
(14%)
55%
50%
80%
(5%)
26%
21%
47%
59%
(21%)
55%
55%
55%
50%
53%
(5%)
68%
68%
23%
30%
11%
27%
(23%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
TABLE P
VOTING PAIRS-CUOMO AGENDA CASES
CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
W
S
K
A
T
H
B
16
19
17
17
18
18
18
NOTES:
W
S
K
A
T
H
B
(0%)
88%
(5%)
75%
76%
(0%)
50%
59%
53%
(0%)
27%
22%
31%
63%
(28%)
60%
56%
50%
63%
53%
(0%)
65%
61%
63%
25%
6%
35%
(22%)
Percentage is proportion of cases in which pair of judges participated
that judges joined in same opinion.
Percentage in parenthesis is proportion of cases in which judge
participated that judge was not joined by any other judge.
HeinOnline -- 68 Temple L. Rev. 1455 1995
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TEMPLE LAW REVIEW
[Vol. 68
TABLE Q
VOTING BLOCS-OVERALL CASES WITH CONCURRENCE AND/OR DISSENT
Titone
Alexander
Hancock
Kaye
Simons
Wachtler
Bellacosa
Total
Votes
T
A
H
K
S
W
B
108
78
116
67
61
48
79
(40)
37
33
21
8
6
11
37
(11)
24
20
15
4
7
33
24
(13)
19
21
9
1
21
20
19
(8)
9
11
10
8
15
21
9
(9)
14
11
6
4
9
11
14
(3)
26
11
7
1
10
11
26
(34)
Indices of Cohesion
Wachtler, Bellacosa
Alexander, Titone
Alexander, Titone, Hancock
.41 (Medium)
.40 (Medium)
.31 (Low)
TABLE R
VOTING BLOCS-CRIMINAL CASES WITH CONCURRENCE AND/OR DISSENT
Total
Votes
T
K
H
A
S
B
W
Titone
62
(20)
14
17
20
4
4
2
Kaye
25
14
(5)
5
13
3
1
0
Hancock
Alexander
Simons
Bellacosa
Wachtler
32
37
24
36
15
17
20
3
4
2
5
13
3
1
0
(4)
10
6
0
0
10
(3)
7
2
1
6
7
(3)
7
6
0
2
7
(15)
14
0
1
6
14
(0)
Indices of Cohesion
Wachtler, Bellacosa
Kaye, Alexander
Alexander, Titone
Wachtler, Simons, Bellacosa
Titone, Hancock
Alexander, Titone, Hancock
Kaye, Alexander, Titone, Hancock
Wachtler, Simons
Kaye, Titone
HeinOnline -- 68 Temple L. Rev. 1456 1995
.54
.42
.40
.36
.36
.36
.33
.31
.31
(High)
(Medium)
(Medium)
(Low)
(Low)
(Low)
(Low)
(Low)
(Low)