The dynamics of state constitutional decision-making ...332764/... · the dynamics of state constitutional decision-making: judicial behavior at ... 49 or. l. rev. 133, ... james

THE DYNAMICS OF STATE CONSTITUTIONALDECISION-MAKING: JUDICIAL BEHAVIOR AT

THE NEW YORK COURT OF APPEALS

Luke Bierman*

Although scholars continue to refer to its infancy,' the "New JudicialFederalism" is rapidly approaching maturity. Indeed, the genre's most ar-dent analysts recognize that judicial federalism "isn't new anymore."'2 As theenthusiasm that initially sustained judicial federalism wanes, informed ob-servers recognize that the focus of scholarly investigation of state constitu-tionalism must be broadened if the subject is to move forward in anintelligent and useful fashion.3

This article is meant as a contribution to the expansion of our thinkingabout state constitutional decision-making. Rather than focus simply on doc-trinal analysis of how state high court judges approach and interpret stateconstitutions, this article examines state court decision-making from the per-spectives offered by the rich literature of judicial voting behavior. Specifi-cally, this article considers how the judges of the New York Court of Appealsexercise their individual prerogatives in resolving cases. By looking at votingpreferences, patterns, and alignments in different categories of cases, includ-ing state constitutional cases, one can identify the influences and motivationsaffecting voting behavior. From this examination, a broader understandingof the dynamics involved in decision-making under the so-called "New Judi-cial Federalism" is possible.

* Visiting Specialist in Constitutional Law and Civil Liberties, The Richard Stockton Col-

lege of New Jersey; B.A., Colgate University; J.D., Marshall-Wythe School of Law of the Collegeof William and Mary; M.A., Ph.D., State University of New York at Albany. This article isadapted from a chapter of the author's doctoral dissertation. The author would like to thankProfessors Stephen L. Wasby and Vincent M. Bonventre for thoughtful criticism in initial draftsof this article, and Christine Kenefick for coming through in a pinch with research assistance, asshe always does.

1. See, e.g., Michael Esler, State Supreme Court Commitment to State Law, 78 JUDICATURE25, 25 (1994) (arguing that extent to which state courts rely on own constitution is overrated).

2. Ronald K.L. Collins, Reliance on State Constitutions-Beyond the New Federalism, 8 U.PUGET SOUND L. REV. vi, vi (1985).

3. See, e.g., G. Alan Tarr, Constitutional Theory and State Constitutional Interpretation, 22RUTGERS L.J. 841, 861 (1991) (reviewing constitutional bases for judicial review of regulatorypractices in Oregon).

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I. APPROACHES TO JUDICIAL DECISION MAKING

Although the influence of the states as "laboratories" for developing so-cial and economic policy has long been recognized,4 the importance of statecourts to constitutional development has been slower in gaining recognition.Of course, state courts have rendered decisions on state grounds, includingstate constitutional grounds, since the American Revolution, 5 but only in thelast half of the twentieth century has significant attention been paid to thestate constitutional phenomenon.6 Having gained popularity as a mechanismfor protecting individual rights and liberties at a time when the U.S. SupremeCourt was less protective of those rights, state constitutionalism has gener-ated substantial scholarly interest and concern.

The fact that the "New Judicial Federalism" has actually been less pro-tective of individual rights and liberties than generally believed 7 has not un-dermined the importance or growth of state constitutionalism. State courtshave remained an important concern for several reasons. The bulk of litiga-tion occurs in state courts, providing numerous opportunities for innovativestate law, including state constitutional claims. Not surprisingly, state courtshave utilized state constitutional provisions to effect public policy develop-ment in such diverse areas as education, welfare, civil justice, and civil liber-ties.8 The breadth of state court constitutional decision-making makes theimportance of these courts apparent.

The failure of state courts to develop principled approaches or founda-tions to state constitutional interpretation, however, has raised concernswithin the scholarly community.9 Among the more perceptive and knowl-

4. See, e.g., New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1931) (Brandeis, J., dissent-ing) (recognizing that state choosing to act as laboratory for experimentation is "happyincident").

5. See, e.g., Vincent M. Bonventre, State Constitutionalism in New York: A Non-ReactiveTradition, 2 EMERGING ISSUES ST. CONST. L. 31, 35 (1989) (discussing long tradition of in-dependent decision-making by state).

6. Former Oregon Justice Hans Linde generally is conceded to have sparked attention tostate constitutional adjudication. See, e.g., Hans Linde, Without "Due Process": Unconstitu-tional Law in Oregon, 49 OR. L. REV. 133, 153 (1970) (reviewing constitutional bases for judicialreview of regulatory policies). However, the more practical concern over "the Burger Court'sperceived hostility to Warren Court activism and its extension" has led to the growth in attentionto state constitutionalism. Earl Maltz, The Political Dynamism of the "New Judicial Federalism",2 EMERGING ISSUES ST. CONST. L. 233, 235 (1989). See also William J. Brennan, State Constitu-tions and the Protection of Individual Rights, 90 HARV. L. REV. 489, 489 (1977) (arguing thatfederal 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 JUDICATURE195, 195 (1991).

8. See generally A.E. Dick Howard, The Renaissance of State Constitutional Law, 1 EMERG-ING ISSUES ST. CONST. L. 1, 12 (1988) (discussing how state constitutionalism has affected areasof economic regulation, separation of church and state, criminal procedure, environment, andgender discrimination).

9. See, e.g., Vincent M. Bonventre, New York's Chief Judge Kaye: Her Separate OpinionsBode 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 constitu-tional decision-making); Peter J. Galie, Modes of Constitutional Interpretation: 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" ap-proach to state constitutional decision-making. 10 Tarr argues forcefully thatstate courts need to develop "a principled state constitutional jurisprudence"in order to bring greater understanding and legitimacy to state constitutional-ism." Rejecting the prevalent use of text-based interpretivism for state con-stitutional provisions as too similar to federal constitutional jurisprudencedespite different historical and philosophical bases, Tarr suggests that betterunderstanding of state constitutional law will come only from "more sus-tained reflection about the nature of state constitutions and through a dia-logue with scholars outside the field of state constitutional law."'12

Of course, jurisprudential choices and ideological approaches form thebases for most doctrinal analysis of judicial behavior. Judicial process schol-ars from all fields, however, recognize the judicial decision-making process asa complicated undertaking that implicates more than just doctrinal interpre-tation. These scholars acknowledge that the way in which a judge's vote isexercised, with its accompanying explanation as expressed in an opinion, is afundamental expression from which we can learn much about the beliefs androles of those serving on a court. In other words, a judge's voting behaviorcan serve as a window to the motivations underlying the judicial decision-making process. Tapping into this expressive conduct for explanatory pur-poses would seem especially appropriate to elucidate the developing area ofstate constitutionalism.

Recognizing the importance of a judge's vote, judicial process scholarsinterested in judicial behavior have tended to concentrate their attention onjudges' voting practices. For example, the nature of an appellate court's ju-risdiction can affect such voting behavior as dissent rates and patterns. Thecapacity of an appellate court's leader to exert various forms of leadershipcan change a court's voting preferences and patterns. Judges' ideologies andcapacities to influence colleagues to accept their views relate to how judgesvote. A court's "standard operating procedures" and its judges' perceptionsabout them contribute to the way in which votes are exercised. The judges'backgrounds and experiences also affect voting behavior. By drawing on therich literature devoted to judicial voting behavior, we can use these variousapproaches to assess judges' voting preferences and patterns and thereby de-termine 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) (raisingconcerns 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 fail-ure of state constitutional discourse results from failure of internally inconsistent state constitu-tion itself); Tarr, supra note 3, at 842 (describing concerns regarding lack of dialogue betweenconstitutional 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 intowhat has been called the "New Judicial Federalism."

The relationship between discretionary jurisdiction and lack of consen-sus in resolving cases is apparent from the trend away from unanimity at theU.S. Supreme Court following enactment of the Judges' Bill of 1925.13 Theability to choose cases with important and divisive issues helped to define theSupreme Court's role and its justices' habits during this century. The mostfrequent dissenters in Supreme Court history hail from this period, withJustice Douglas well-recognized for his prodigious number of dissenting votesand opinions. 14 The prevalence of dissents by those at ideological extremes,such as Justices Brennan, Marshall, and Rehnquist, also has beenrecognized. 15

Although the most famous of the Supreme Court dissenters, thoseknown as the "Great Dissenters" such as Justices Holmes and Brandeis, de-veloped their reputations at a time when the Court's mandatory jurisdictionseems effectively to have diminished the number of dissents, the frequencyand rates of their dissents are far below those of the more prolific dissentersof more contemporary times. 16 This suggests that the frequency of dissentshould not be confused with the tenor, content, and ultimately, the effective-ness of the dissent.

This suggestion, that the quality rather the quantity of dissents may af-fect how others perceive the effectiveness of the dissenter's position, raisesthe possibility that certain judges can exert influence over others. This "abil-ity to persuade or convince another of the correctness of one's opinions" willreveal whether particular judges played more influential roles than others inthe dynamics of an appellate court. 17 For example, Spaeth and Altfeld foundthat the justices on the Warren and Burger Courts exerted little influence oneach other through their dissenting and concurring opinions, although jus-tices of similar ideological preferences were more likely to be influenced byeach other.' 8

Related to the possibility of influencing colleagues' votes through sepa-rate opinions is the opportunity to affect voting behavior by exerting judicialleadership. A variety of leadership roles have been identified as contributingto 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, theJudges' Bill and the Role of the U.S. Supreme Court, 30 W. POL. Q. 471, 472 (1977) (examiningways 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, THESUPREME 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 leader-

ship in Supreme Court); see also Michael F. Altfeld & Harold J. Spaeth, Measuring Influence onthe U.S. Supreme Court, 24 JURIMETRICS J. 236, 244-47 (1984) (analyzing influence of SupremeCourt justices on each other).

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members' votes. Task leadership requires control over the Court's workloadand procedures, with social leadership requiring attention to the diverseneeds and relationships among strong-willed, successful individuals. 19

The chief justice, as the first among equals, has been afforded a varietyof tools to effect these leadership roles on the U.S. Supreme Court. For ex-ample, the chief justice compiles the "discuss list" and leads conference dis-cussions, affording important opportunities to set the Court's agenda and topersuade others.20 Opinion assignments offer another useful means by whichthe chief justice can provide leadership; justices' votes as well as public opin-ion may well turn on the tenor of a written opinion, which is related to theway the chief justice handles voting responsibilites.21

Although some have seized these opportunities for leadership, not allchief justices have successfully risen to the occasion to serve as effective andpersuasive leaders.22 Chief Justices Taft and Hughes, for example, have beenacknowledged as strong leaders, moving the Court's practices and doctrine indesired directions. Likewise, Chief Justice Warren's ability to craft a unani-mous opinion in Brown v. Board of Education23 is but one example of hisunique leadership skills, which earned him recognition as "Super Chief."'24

On the other hand, Chief Justice Burger's lack of doctrinal consistency andfailure to master certain administrative tasks expected of the chief justiceinhibited his ability to marshal votes. 25

In attempting to seize the opportunities for leadership presented, it isnot unusual for a chief justice to enlist the assistance of other justices. Forexample, Justice Van Deventer's intellectual leadership complemented ChiefJustice Taft's social graces. Chief Justice Warren's social leadership is well-recognized, and he relied on Justice Brennan for task and policy assistance.2 6

William Rehnquist, as Chief Justice, softened his conservative rhetoric tofunction 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, inCOURTS, 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 DiscussList in the Supreme Court (Paper Presented at the 1988 American Political Science AssociationAnnual Meeting).

21. See, e.g., Sue Davis, Power on the Court: Chief Justice Rehnquist's Opinion Assignments,74 JUDICATURE 66, 67 (1990) (discussing Chief Justice's power in assigning majority opinions toother justices).

22. See generally O'BRIEN, supra note 14, at 239-43, 277-84 (describing process of judicialconferences).

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, Protecting Judicial Leadership: Did Rehnquist Prefer To Switch

than Fight?, 29 WILLAMETTE L. REV. 151, 157 (1993) (examining Rehnquist's role as dominantconservative voice on Supreme Court).

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joined by his usual voting partner Justice Thomas, 28 provided the conserva-tive salvos that characterized Rehnquist's opinions as an Associate Justice.The development of a centrist coalition of Justices O'Connor, Kennedy, andSouter for at least some doctrinal issues29 also reveals that it is not only thechief 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 hasbeen seen as particularly influential to the court's reputation, if not direction.Benjamin Cardozo's reputation as a leading common law jurist helped bringnational 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 mat-ter of state law were enhanced under the leadership of Chief Judges StanleyFuld (1967-1973) and Lawrence Cooke (1979-1984).3 0 As chief judge,Charles Breitel (1974-1978) pushed his colleagues to meet high standards inwhat has been characterized as "rough fondling," and his tenure saw impor-tant administrative reform at the court.31 Sol Wachtler, appointed chiefjudge in 1985, was described in 1990 as a "dominant force,"' 32 with the courttaking on his " 'cordial, pragmatic and intelligent' " personality. 33

There has been other evidence of the chief judge's influence on the courtof appeals during the 1980s and 1990s. Bonventre has suggested that ChiefJudge Sol Wachtler in the late 1980s led the court to retreat from its tradi-tional progressive views in protecting civil rights and liberties under the stateconstitution, 34 despite extrajudicial writings of several members of the Wach-

28. See Christopher E. Smith & Scott P. Johnson, The First-Term Performance of JusticeClarence Thomas, 76 JUDICATURE 172, 173 (1993) (noting frequency of Justice Thomas votingsame 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 Constitutional Guaranteesand Protection of 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 insearch and seizure during traffic stop); see also Akel v. New York, 81 S. Ct. 25, 26 (1960) (refer-ring to Judge Fuld as "solicitous" of claims to civil rights and liberties); Feiner v. New York, 340U.S. 315, 288 (1951) (Frankfurter, J., concurring) (asserting that New York Court of Appeals ishospitable 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 chiefjudge 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 LibertiesUnion).

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) [hereinafterBonventre, State Constitutional Adjudication] (suggesting Judge Wachtler's tenure as chief judgereversed progressive movement of court); Vincent M. Bonventre, Court of Appeals-State Con-stitutional Law Review, 1990, 12 PACE L. REv. 1, 49-51 (1992) [hereinafter Bonventre, Court ofAppeals] (providing statistical data linking Judge Wachtler to conservative trend in court); Vin-cent M. Bonventre, State Constitutional Recession: The New York Court of Appeals Retrenches,4 EMERGING ISSUES ST. CONST. L. 1, 3 (1991) [hereinafter Bonventre, State Constitutional Reces-

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tier court indicating broad support for the court of appeals' longstanding rec-ognition of rights and liberties under independent state grounds. 35

Bonventre's identification of a more recent shift back toward the court'straditional position under Chief Judge Judith Kaye36 adds further support forthe 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 com-monly utilized and accepted practices and procedures of an appellate court,and thereby affect the prevailing customs and expectations of the court'smembers. These types of changes are noteworthy; appellate courts are richin tradition and appellate court judges, usually with long periods of socializa-tion as members of the bar if not the judiciary, 37 are sensitive to the locallegal culture. 38 In considering the factors affecting judicial voting, then, it is

sion] (arguing that while New York gains attention for state constitutional adjudication, courtactually 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 proceduralaspect of Supreme Court case to provide greater liberties than federal law); Stewart Hancock,Jr., The State Constitution, a Criminal Lawyer's First Line of Defense, 57 ALB. L. REV. 271, 279(1993) (arguing that New York Court of Appeals led way in protecting civil rights through stateconstitution in areas of right to counsel and self-incrimination); Judith S. Kaye, Foreword: TheCommon Law and State Constitutional Law as Full Partners in the Protection of IndividualRights, 23 RUTGERS L. REV. 727, 744 (1992) [hereinafter Kaye, Foreword] (asserting that NewYork courts recognize rights and liberties under independent state grounds in area of privacy);Judith S. Kaye, Dual Constitutionalism in Practice and Principle, 61 ST. JoHN's L. REV. 399, 419(1987) [hereinafter Kaye, Dual Constitutionalism] (arguing that policy considerations rooted instate constitution caused New York Court of Appeals to depart from federal precedent in areaof search and seizures); Vito J. Titone, State Constitutional Interpretation: The Search for anAnchor in a Rough Sea, 61 ST. JoHN's L. REV. 431, 465-66 (1987) (asserting that New York'straditional concern for rights of privacy and personal liberty led to development of right to coun-sel and prisoners' rights based on state law); Sol Wachtler, Constitutional Rights: Resuming theStates' Role, 15 INTERGOVERNMENTAL PERSP. 23, 25 (1989) [hereinafter Wachtler, ConstitutionalRights] (stating that state courts often afford greater rights and protections then federal counter-parts); see also Judith S. Kaye, Contributions of State Constitutional Law to the Third Century ofAmerican Federalism, 13 VT. L. REV. 49, 52-56 (1988) [hereinafter Kaye, Contributions] (notingthat state courts such as New York's provide more directly for the interests of their citizens); SolWachtler, Our Constitutions - Alive and Well, 61 ST. JoHN's L. REV. 381, 397 (1987) [hereinaf-ter Wachtler, Our Constitutions] (noting that state constitution is most immediate protector ofindividual rights).

36. See Vincent M. Bonventre & John D. Powell, Changing Course at the High Court, EM-PIRE ST. REP. 55, 55-57 (Mar. 1994) (noting that Kaye's tenure as chief judge marks return totraditional position for court as protector of fundamental rights); see also Bonventre, supra note9, 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 AppellateJudges, 73 JUDICATURE 10, 10-16 (1989) (arguing that socialization of judges is informal, unsys-tematic, 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 andothers); Michael C. Gizzi & Christopher M. McMahon, Exploring Appellate Court Culture: AnExamination of the United States Courts of Appeals, Paper Presented at 1992 Law & SocietyAssociation Annual Meeting (examining impact of the "local legal culture" on federal appellatecourt judges).

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appropriate to keep in mind the socialization, norms of behavior, and back-grounds of the judges.

Regarding accepted means of behavior, the New York Court of Appealshas traditions concerning congeniality among its members and consensus inits decision-making. The small number of concurrences and dissents at thecourt of appeals can be seen in the court's earlier years when its prestige wasat its highest.39 The civility of those dissents written during Cardozo's timehas been noted.40 Prominent members of the court of appeals serving fromthe 1940s to the 1980s have emphasized that dissenting opinions, though serv-ing a useful purpose in some circumstances, were expected to be few andrestrained.41 Indeed, at the beginning of his tenure as chief judge in 1985, SolWachtler placed consensus among his priorities for the court of appeals. 42

These expectations differ substantially from those currently in force at theU.S. Supreme Court, whose justices' dissent writing has been the subject ofcriticism by prominent jurists.4 3

The manner in which a court's "standard operating procedure" canchange and thereby affect its judges' voting behavior is seen in the dissentpatterns at the U.S. Supreme Court. As already mentioned, the Judges' Billof 1925 expanded opportunities for separate opinions."4 Stone's failure tostifle independent expression through concurrences and dissents during histenure as chief justice contributed to the institutionalization of divided opin-ions by the Supreme Court.4 5 Similarly, Stone's practice of circulating hislaw clerks' memoranda on unpaid petitions for certiorari laid the foundationfor 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 718appeals with only 31 concurrences and dissents. ROBERT MACCRATE ET AL., APPELLATE JUS-TICE IN NEW YORK 178, App. E-8 (1982); see also RiCHARD A. POSNER, CARDOzo: A STUDY INREPUTATION 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) (arguingthat dissents should only be published if they stimulate discourse regarding soundness of major-ity opinion); Hugh R. Jones, Cognitations on Appellate Decision-Making, 34 RECORD ASS'N BARCrTY N.Y. 543 (1980) (arguing that decision to dissent must be made in view of best interests ofcourt and law).

42. See Gary Spencer, Wachtler Reviews Judicial Tenure, N.Y. L.J., July 21, 1993, at 1 (dis-cussing appointment of Judge Wachtler); The Making of a Chief Judge, 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 reputa-tion of judiciary); Roger J. Miner, Federal Court Reform Should Start at the Top, 77 JUDICATURE104, 107 (1993) (arguing for Supreme Court reformation of decision-making process to ease loadof federal system).

44. See Halpern & Vines, supra note 13, at 472 (assessing impact of Judiciary Act of 1925 ondissenting behavior).

45. See generally Thomas G. Walker et al., On the Mysterious Demise of Consensual Normsin the United States Supreme Court, 50 J. POL. 361, 378-84 (1988) (discussing ineffectiveness ofJustice Stone as leading to breakdown of consensus of Supreme Court).

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clerks in making decisions on whether to grant review.46 These develop-ments suggest that changes in the accepted norms of behavior at an appellatecourt can occur for a variety of reasons, all of which may affect votingbehavior.

Voting preferences of judges also have been analyzed from various per-spectives related to judges' selection for the bench. Appointments to theU.S. Supreme Court are examined regularly to determine if the executive hasbeen able to "have his way" on the nation's high court.47 The judges of othercourts are similarly studied. For example, President Reagan's conservativerhetoric and policies, coupled with his administration's commitment to a con-servative judiciary, seem to have yielded a federal judiciary less committedthan earlier appointees to supporting environmental and economic regula-tion.48 President Bush's judicial appointees at the trial and appellate levelshave been compared to judges appointed by other presidents and found rela-tively conservative,49 which is entirely consistent with the commitment madeby the Bush administration to appoint conservative judges.50

A variety of background characteristics have also been examined for in-sight into judicial voting behavior. Jaros and Canon suggested that the careerexperiences of state supreme court judges could affect their propensity todissent.51 A series of studies of the Michigan and Wisconsin Supreme Courtsduring the 1960s reached contrary results about the effect of party identifica-tion on judges' votes in particular types of cases. 52 For the New York Courtof Appeals, Beiser and Silverman found little correlation between party iden-

46. O'BRIEN, supra note 14, at 234-37 (discussing circulation of memoranda and reliance onlaw clerks).

47. See, e.g., HENRY J. ABRAHAM, JUSTICES AND PRESIDENTS 58 (3d ed. 1992) (examiningvarious presidents' motives in appointing Supreme Court Justices and Justices' subsequent vot-ing 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 ofSupreme 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, 3FLA. ST. U. L. REV. 331, 333 (1975) (examining voting trends and ideological impact of NixonSupreme Court appointees).

48. William E. Kovacic, Reagan's Judicial Appointees and Antitrust in the 1990s, 60 FoRD-HAM 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 theFederal 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, 76JUDICATURE 298, 302 (1993).

50. Id. at 301.51. Dean Jaros & Bradley C. Canon, Dissent on State Supreme Courts: The Differential

Significance of Characteristics of 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 andsocio-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, 4POLITY 91, 101 (1971) (noting that party identification does not account for societal influencessuch 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.53 Despite theinquiries into the effects of these background characteristics on judicial vot-ing, no precise consensus seems to have been reached.

These various perspectives on judicial voting behavior suggest that thereare many opportunities for voting practices to be studied usefully to gaininsight into the ways that judges exercise their discretion and authority. Toappreciate further the development of state constitutional interpretation,these perspectives can be drawn upon. By examining voting behavior as re-flected by judges' voting preferences, patterns and alignments, the motiva-tions and influences that affect state constitutional decision-making can beunderstood. It is appropriate, then, to turn to this particular study and ex-plain its methods and objectives.

II. SCOPE OF THE STUDY

The New York Court of Appeals is the subject of this study for a varietyof reasons. The court of appeals historically has been one of the nation'smost important state high courts. Its decisions have influenced the develop-ment of American law and social policy almost since the court's inception in1847.54 Citation studies confirm the influence of the New York Court of Ap-peals on other courts at mid-century. 55 Benjamin Cardozo perhaps is thebest known of the court of appeals judges56 but others have been elevated tothe U.S. Supreme Court after serving on New York's high court57 and thecourt's chief judge has even resigned to run, albeit unsuccessfully, for Presi-dent.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 politicalparty 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 Com-pensation 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 con-cept 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 distributedthrough retailer); Lawrence v. Fox, 20 N.Y. 268, 274 (1859) (finding defendant liable for debtalthough promise to pay was made to third party).

55. See, e.g., Lawrence M. Friedman et al., State Supreme Courts: A Century of Style andCitation, 33 STAN. L. REV. 773, 804-06 (1981) (noting that New York state cases are used mostfrequently by courts of other states citing cases outside their state); John H. Merryman, TheAuthority of Authority: What the California Supreme Court Cited in 1950, 6 STAN. L. REV. 613,667-68 (1954) [hereinafter Merryman, Authority] (noting that New York state cases were mostfrequently cited out-of-state authority); John H. Merryman, Toward a Theory of Citations: AnEmpirical Study of the Citation Practice in the California Supreme Court in 1950, 1960, and 1970,50 S. CAL. L. REV. 381, 401-02 (1977) [hereinafter Merryman, Toward a Theory] (finding thatNew York cases were most heavily relied upon foreign authority).

56. See generally POSNER, supra note 39 (examining life and legal career of BenjaminCardozo).

57. Ward Hunt and Rufus W. Peckham also ascended to the United States Supreme Courtafter serving on the New York Court of Appeals.

58. Alton Parker, who was Chief Judge from 1888 to 1904, was defeated by TheodoreRoosevelt in the 1904 Presidential election.

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place at the forefront of independent state law decision-making and has beenrecognized for its progressive viewpoints.59 These aspects of the New YorkCourt of Appeals make it especially appropriate for examination of decision-making influences in the area of state constitutionalism.

Various voting activity by New York Court of Appeals' judges is studiedhere. First, voting preferences are assessed to determine the extent to whichparticular outcomes are favored. 60 Next, voting patterns are considered todetermine the extent to which concurrences and dissents are registered. 61 Fi-nally, voting alignments are analyzed by looking at the extent judges votedtogether 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 indi-vidual judges. These examinations permit comparisons between particularjudges and the court, as well as among the individual judges.

The plenary appeals decided by the court of appeals during the fivecourt terms from 1987 through 1992 comprise the data set for performingthese analyses. All plenary appeals decided by the court using an opinion ormemorandum format are included.63 Analysis of these court terms affordsinsight into a discrete court period comprising a natural court that has beenthe 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 asleader in state protection of individual rights); Galie, supra note 30, at 193 (arguing that NewYork Court of Appeals was at forefront of states in protection of individual liberties); cf WAL-TER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 99 (1964) (noting that New York Court ofAppeals 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 finaloutcome.

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 individ-ual judges and identifiable voting blocs.

63. Appeals in the election cases were omitted from the data set because these appealsusually are not heard in the course of the court's regularly scheduled terms. A few other appealswere excluded because they exhibited unusual characteristics; such circumstances included cer-tain odd jurisdictional bases giving rise to the appeal and the participation of lower court judgesin the New York Court of Appeals' decision-making process due to the temporary absences ofmembers 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 jurisdictionbetween 1987 and 1989); Bonventre, Court of Appeals, supra note 34, at 3-4 (examining NewYork Court of Appeals' application of independent state constitutional law in 1990); Vincent M.Bonventre, Court of Appeals - State Constitutional Law 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 Wach-tier-era high court); Bonventre, State Constitutional Adjudication, supra note 34, at 121 (notingWachtler-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 orstate grounds for decisions in individual rights cases); Carl Swidorski, The New York Court ofAppeals 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 Associ-ate Judges Richard D. Simons, Judith S. Kaye, Fritz W. Alexander, II, Vito J.Titone, Stewart F. Hancock, Jr., and Joseph W. Bellacosa. Governor MarioM. Cuomo appointed each of these judges to the court between 1983 and1987. Each had served as a state appellate judge prior to appointment byCuomo, except for Kaye, who had been a practicing attorney without judicialexperience upon appointment, and for Bellacosa, who had been the Clerkand Counsel to the New York Court of Appeals and the Chief Administra-tive Judge of the New York state courts.65

Different categories of cases are examined. The overall plenary caseloadconstitutes a category, 66 as do the civil caseload 67 and criminal caseload. 68

More specific categories also are examined. 69

Non-criminal civil rights and liberties cases provide one category foranalysis. 70 These cases affect important freedoms under federal or state con-stitutional, statutory, or regulatory schemes, particularly those that havecome to be perceived as important to personal autonomy and independence.Because these cases ultimately determine the kind of society that judges envi-sion, they appropriately are considered in an assessment of judicial behavior.Studying voting behavior in this area is particularly appropriate because, de-spite the progressive tradition of the court of appeals dating back at least toCardozo, 71 the Wachtler court was seen as curtailing civil rights andliberties. 72

Judicial federalism cases, many of which are closely related to civil liber-ties, constitute another category for analysis, 73 but with a different focus.These cases involve disputes over the interpretation of the state constitutionagainst the backdrop of federal constitutional doctrine. During the 1980s, asthe 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 analyzingdecisions).

65. Bellacosa had been appointed a state trial judge during his service as administrativehead of the New York courts but he did not exercise the functions of a trial judge, merely takingadvantage of the title.

66. See Appendix, Tables D, H-M, Q for data related to the overall plenary caseload heardby 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 theCuomo Agenda cases.

70. See Appendix, Tables B, C, G, N for data relating to the civil rights and liberties casesdecided by the New York Courts of Appeals.

71. Bonventre, supra note 5, at 41-42 (noting that Cardozo-era court was influential in de-velopment 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 Constitutional Adjudication, supra note34, 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 de-cided by the New York Court of Appeals.

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favorable to individual rights, the New York Court of Appeals confronted anumber of cases raising the extent to which the New York Constitutionadopted federal doctrine. Despite the attention provided to the few caseswhere the Supreme Court addressed a federal constitutional issue and re-manded the case to the New York Court of Appeals for further considerationof the applicability of the state constitution, 74 the court of appeals enjoyedmany other opportunities to define the scope of the state constitution. Thecases in which the court of appeals specifically addressed whether to adopt,as a matter of state constitutional law, a federal constitutional principle or anindependent rule are those included in this study.

As already noted, the extrajudicial writings of several court of appealsjudges, including Wachtler, Kaye, Titone, Hancock, and Bellacosa, indicateda commitment to state constitutional adjudication independent of federalconstitutional principles. 75 Indeed, during the years just before those cov-ered in this study, the court of appeals had been characterized as exhibiting ahigh level of commitment to state law.76 Yet the court of appeals during theperiod covered by this study was seen as retreating from its historical stateconstitution-based support for broad protection of civil rights and liberties,particularly for freedom of expression and criminal defendants.77 The extentto which the court and its judges preferred independent state constitutionalrules or relied on federal constitutional principles as a matter of state consti-tutional law when confronted with a choice between these competing ratio-nales reveals the commitment to state constitutional adjudication.

Another category for analysis involves "Cuomo Agenda" cases.78 Thesecases involved challenges to programs that were a part of, or supportive of,Governor Cuomo's plan for New York as outlined by his legislative proposalsand annual messages or implemented by his top appointees. Scholars havelooked at Reagan- and Bush-appointed judges to determine whether thesepresidents' 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), va-cated and remanded, 497 U.S. 1021 (1990), on remand, 567 N.E.2d 1270 (N.Y.), cert. denied, 500U.S. 954 (1991); People v. Harris, 532 N.E.2d 1229, 1232-35 (N.Y. 1988) (determining admissibil-ity of self-incriminating remarks after illegal arrest), rev'd and remanded, 495 U.S. 14 (1990), onremand, 570 N.E.2d 1051 (N.Y. 1991); People v. Class, 472 N.E.2d 1009, 1011 (N.Y. 1984) (decid-ing whether police inspection of vehicle identification number constitutes search entitled to pro-tection 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 Constitu-tional 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 onindependent 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 Constitutional Adjudication, supra note34, 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 decidedby the New York Court of Appeals.

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"their" judiciary.79 Similarly, Cuomo's expressed concern about the qualityof the judiciary generally and the court of appeals specifically, 80 his appoint-ment of all members of the Wachtler court, and his extensive policy initia-tives during three terms as governor provide the basis for examining how hisfirst seven appointees to the court of appeals responded to his agenda.81

Analysis of voting preferences is based on the outcome as representedby the prevailing position or party in a case. For criminal cases, the outcomesare based on whether the prosecution or the defendant prevailed. 82 For civilrights and liberties cases, the outcomes are based on whether the individualor the state or institution prevailed.83 For judicial federalism cases, a judge iscoded as adopting a state law ground if the opinion for which the judge votedexplicitly adopted an independent state rule as its rationale; conversely, thejudge is treated as preferring federal law if the opinion for which the judgevoted adopted federal constitutional doctrine as the state rule. 84 For CuomoAgenda cases, the outcomes are based on whether the Cuomo position wasfavored or rejected. 85

Analysis of voting patterns is based on the extent to which a judge alignswith the majority.86 This requires identification of whether a judge has con-curred or dissented. Dissents are identified fairly simply, as the opinions in-dicate that a judge is dissenting. It should be noted that plurality decisionsare practically nonexistent at the court of appeals, in sharp contrast to thesituation at the U.S. Supreme Court. Because it typically reaches majoritydecisions, the court of appeals' voting patterns are much simpler to discernthan those of the Supreme Court.

79. See, e.g., Carp et al., supra note 49, at 302 (noting conservative voting behavior ofBush's judicial appointees); Kovacic, Reagan's Judicial Appointees, supra note 48, at 82-83 (rec-ognizing anti-economic regulation stances of Reagan's judicial appointees); Kovacic, Reagan Ju-diciary, supra note 48, at 699-700 (noting tendency of Reagan appointees to adopt positionopposing environmental regulation).

80. See How Cuomo Selected Wachtler, Alexander, N.Y. L.J., Jan. 3, 1985, at 3 (describinghow Cuomo solicited members of state bar association in identifying selection concerns andcriteria); 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 polit-ical 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 ideologyrather than qualifications).

81. It should be noted that the most telling "Cuomo Agenda" case, that involving Wach-ter's challenge to Cuomo's budgetary treatment of the judiciary, was not resolved by judicialdetermination. Howard B. Glaser, Wachtler v. Cuomo: The Limits of Inherent Powers, 78 JUDI-CAruRE 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 tabulatedas separate votes because this study focuses on each individual's voting be-havior. Because court of appeals judges rarely disagree on outcome,8 7 focus-ing here on the extent to which judges agree with the majority by treating aconcurrence or a dissent as a distinct vote permits assessment of the judges'propensities to vote separately and thereby may avoid a false impression ofthe extent of unanimity derived from looking simply at outcomes. This ap-proach, if anything, will overstate disagreement among the court's judges.

Analysis of voting alignments is based on the extent to which the courtof appeals judges voted with each other in cases with concurring and/or dis-senting opinions.88 Voting pairs are analyzed from a matrix matching eachjudge's votes with those of each other member of the court. Consistent withthe protocol described above, one judge's vote matches another's vote onlywhen they join in a specific opinion, not merely when they agree on outcome.

Alignments also are viewed from the parameters established by Schu-bert for identifying voting blocs. 89 For example, votes of the judges in caseswith concurring and/or dissenting opinions are arranged in a matrix and, us-ing the index of cohesion, which "reflects the average frequency of dissentingvotes cast by bloc members in conjunction with other members of the samebloc," 90 the strength of the bloc is identified by low, medium, or high cohe-sion. 91 Although this study follows Schubert's use of the case as the unit ofanalysis, 92 Pritchett's counting of only judges who agreed on rationale as vot-ing together is the methodology adopted in this study,93 as described above.These conventions in constructing voting alignments should ensure that thejudges' votes in agreement with others better reflect the tendency for judgesto be forming alliances based on specific ideological agreements in all casesdecided.

87. See Bierman, supra note 64, at 86 (noting that New York Court of Appeals voted unani-mously in approximately 90% of civil cases).

88. See Appendix, Tables H-R for data analyzing judicial voting pairs and blocs.89. 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 THEVINSON COURT 240 (1954) [hereinafter PRITCHETT, CIVIL LIBERTIES] (counting votes only onceregardless of how many cases to which vote applied); C. HERMAN PRITCHETT, THE ROOSEVELTCOURT: A STUDY IN JUDICIAL POLITICS AND VALUES, 1937-1947 177-80 (1948) [hereinafterPRITCHETT, THE ROOSEVELT COURT] (same).

93. See PRITCHETT, CIVIL LIBERTIES, supra note 92, at 240 (counting frequency of judgesvoting together in non-unanimous opinions); PRITCHETT, THE ROOSEVELT COURT, supra note92, 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 inrationale). See also Joel B. Grossman, Dissenting Blocs on the Warren Court: A Study in JudicialRole Behavior, 30 J. POL. 1068, 1089 (1968) (arguing that bloc analysis is useful only for identify-ing "the commonality of views shared by Justices who frequently dissent together" and not forexamining dynamics of judicial decision-making process).

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Data for each court term are presented when examining the voting pref-erences and voting patterns in certain broader caseload categories. 94 Themore specific subject matter categories of cases, however, are analyzed bycategory without regard to court term, largely because of the relatively smallnumber of cases included in these categories. 95

With regard to analysis of voting alignments, data on voting pairs arepresented only for the overall plenary caseload in each term and the morespecific subject matter categories as the data for the civil and criminalcaseloads essentially mirrored the overall data. Bloc analysis is presentedwithout regard to court term, as the total number of concurring and dissent-ing votes is relatively small and consideration based on particular court termsprovides too few votes to yield identifiable voting patterns. Indeed, even us-ing this protocol left a sufficient number of cases to discern identifiable pat-terns only for the overall and criminal caseloads, which are presented.

Examination of these various aspects of voting behavior will permitbroader assessment of the New York Court of Appeals judges' approaches tostate constitutional decision-making. By concentrating on judicial decision-making in a variety of distinct categories of cases, comparisons can be madewhich should allow greater insight into the influences and motivations thataffect judicial decision-making generally and state constitutional decision-making specifically. In this way, the dynamics underlying the "New JudicialFederalism" might be better appreciated.

III. VOTING PREFERENCES

A. Criminal Cases

1. Preferences

In four of the five terms under examination, the court of appeals favoredthe prosecution more often than the defendant, with the other term showingoutcomes about equally divided between the prosecution and the defend-ant.96 The court's preference for the prosecution was highest in 1987-1988 at72% and lowest in 1991-1992 at 50%. The highest rates of preference for theprosecution occurred in the earlier three terms with the last two terms show-ing preference for the prosecution at noticeably lower rates. A trend awayfrom favoring the prosecution can be identified in the judges' voting prefer-ences in criminal cases during these terms.97

The individual judges' voting preferences in criminal cases in each termreveal several patterns. During these terms, each individual judge's prefer-ence tended to approximate the court's preference. In no term was an indi-vidual judge's preference more than eight percentage points different from

94. See Appendix, Tables H-M for data revealing voting behavior across broad categories ineach of the terms studied.

95. See Appendix, Tables C, G, N-P for data showing voting behavior in smaller, morespecific 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 thecourt's preferences. In four of the five terms, all judges preferred the prose-cution, with the only exception in 1991-1992, when the court's preference wasalmost evenly divided. The difference between the most pro-prosecution andleast pro-prosecution judge in each term ranged from 5% to 12%. Thesedata suggest that there was a great deal of collective agreement about how toresolve criminal cases.98

The individual judges' votes indicate that their preferences as comparedto the court and to other judges tended to remain fairly consistent. Wachtler,Simons (except 1987-1988), and Bellacosa were more pro-prosecution thanthe court in each term. Kaye, Titone and Hancock were less pro-prosecutionthan the court in each term (except that Hancock equaled the court in 1990-1991) 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 thefive terms (though tied with Wachtler in 1987-1988 and with Simons in 1990-1991). Wachtler and Simons were within the top three most favorable to theprosecution in each term. Titone, on the other hand, was the court's mostpro-defendant member in four of the five terms (though tied with Kaye andAlexander in 1989-1990). Kaye was the second or third most pro-defendantjudge in each term. Alexander and Hancock's preferences tended to vary;Alexander was the most pro-prosecution in 1988-1989 but tied as the mostpro-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 sev-eral reasons. Considering the court's historical reputation as progressive,which should suggest sympathy for defendants' claims of unfairness, and itslongstanding discretionary jurisdiction over criminal cases,10 which wouldsuggest broad opportunities for selecting cases with egregious violations ofdefendants' rights, outcomes more favorable to criminal defendants mighthave been expected. The court's failure to act in this expected manner mightbe attributed to a law-and-order approach in criminal cases during a time ofsubstantial public concern over crime. Certainly the court of appeals recog-

98. 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 unconstitutionalwithout consideration of mitigating circumstances), cert denied, 469 U.S. 1227 (1985), criminalcases are usually accepted for plenary review by the Court of Appeals upon the leave of a singleCourt 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). Certainintermediate 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 Ap-plications to the Court of Appeals, N.Y. ST. BAR J., Jan. 1990, 28, 30 (reviewing procedures forappealing criminal cases in New York state judicial system).

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nized the societal impact of increasingly pervasive criminal activity during theyears of this study, as indicated by the court's references to substantial in-creases 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 ofthe study, then, would be hard to explain. Perhaps the more pro-prosecutionoutcomes could have resulted from the effect of a 1985 amendment to thecourt of appeals' jurisdiction, which afforded substantial discretion to thecourt over its civil jurisdiction. As they became more comfortable with theirenhanced discretionary authority after the jurisdictional amendment, thejudges might have tended to choose cases in which the criminal defendanthad presented particularly attractive, and favorable, issues. The presence ofa lag before the full impact of the jurisdictional amendment was felt can beattributed to the need for some time and effort before the judges becamecomfortable with the alterations to longstanding operating procedures, as oc-curred with the U.S. Supreme Court following the Judges' Bill of 1925.103The rather noticeable change, however, in the judges' preferences in criminalcases, which were not affected by the jurisdictional amendment, tends to un-dermine this jurisdictional explanation.

More likely explanations for the preferences relate to the chief judge'sleadership and the other judges' approach to their work based on their back-grounds and experiences. That Wachtler pushed the court in a particular di-rection is consistent with Bonventre's assessment of voting behavior duringthis period.10 4 The court's high support for the prosecution during the earlyterms would be consistent with a law-and-order orientation encouraged byWachtler in advance of a possible future bid for governor105 or to enhancehis reputation with conservative presidents considering appointments to the

102. The persistent theme in the annual State of the Judiciary reports prepared by ChiefJudge Sol Wachtler from 1990 to 1992 was the tremendous increase in filings in the New Yorktrial 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-widecase 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 of1925 not felt until 1927 Term).

104. See Bonventre, Court of Appeals, supra note 34, at 52-53 (indicating that Wachtler-eraCourt of Appeals restricted court's formerly progressive stances on individual rights); Bonven-tre, supra note 64, at 445 (same); Bonventre, supra note 9, at 1164-65 (same); Bonventre, StateConstitutional Adjudication, supra note 34, at 121 (same).

105. Wachtler was a perennial possible candidate for the Republican nomination for Gover-nor. 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 1985effectively removed a prominent potential candidate from the 1986 gubernatorial election. Andthere was little doubt that he was considering a run for governor in 1994. See generally SamRoberts, 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 thescope of post-conviction collateral attacks in criminal cases 10 7 that is analo-gous to contemporaneous U.S. Supreme Court limitations to habeas corpusrelief,108 and supported a restriction to New York's expansive right to coun-sel rule' 0 9 in accordance with a view he had long advocated. 1 0 Wachtler'sinfluence as chief judge in securing these decisions is apparent.

The court's diminishing support for the prosecution during the latterterms could have resulted from Wachtler's distraction from the court's workas he battled Governor Cuomo in the press and the courts over funding forthe judiciary"' and engaged in his own pattern of criminal conduct that ledultimately to his resignation and conviction on federal felony charges."12

Without the strong influence of the chief judge, the other judges might havebeen more amenable to outcomes favoring defendants.

The effect of Wachtler's leadership, or lack thereof, finds further supportin 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 Jus-tice Warren was able to do,113 or that Wachtler registered his votes to ensureagreement with a court that had moved beyond his control, as occurred withChief Justice Burger. 1 4 Considering that Wachtler's colleagues initiallyrespected him as chief, and that the chief judge's authority and leadership arewell-recognized in the workings of the court of appeals, the other judges'deference to Wachtler's preferences seems plausible, at least during the ear-

106. Reports indicated that Wachtler was consciously pursuing a high court seat. Eric Poo-ley, Crazy for You, N.Y. MAG., Dec. 14, 1992, at 35, 43 (stating that Republican fundraiserpushed for high court seat for Wachtler).

107. People v. Jackson, 585 N.E.2d 795, 796 (N.Y. 1991) (holding that defendant must showerror 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 onhabeas appeal defendant must meet stricter "cause and prejudice" standard when denied federalevidentiary hearing); Coleman v. Thompson, 111 S. Ct. 2546, 2553-54 (1991) (finding federalhabeas appeal properly dismissed when based on "independent and adequate" state proceduralgrounds).

109. People v. Bing, 558 N.E.2d 1011, 1012-14 (N.Y. 1990) (finding that right to counseldoes 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 futurecharge 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 againstCuomo over judicial budget).

112. See Josh Barbanel, Chief Judge 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 inBrown 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 conferencevote to vote with majority and assign opinion author).

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lier terms.115 His distractions in the latter terms would help explain thecourt's move to greater support for defendants.

In conjunction with the effects of Wachtler's leadership is the possibilitythat the associate judges acted more independently in the latter terms. Atthe beginning of the 1987-1988 term, the senior associate (Simons) hadserved only four years on the court, with the most junior judge having lessthan one year of tenure (Bellacosa). As the length of the associate judges'service increased, they might have felt less constrained to follow the lead ofthe far more experienced chief judge (Wachtler had more than 15 years expe-rience on the court of appeals, having served almost a full 14-year term as anassociate upon his elevation to chief judge), especially if he became dis-tracted from the court's work in the latter terms. The judges' independencealso might have been enhanced by a "nudge" from the U.S. SupremeCourt,116 which had reviewed several court of appeals rulings during this pe-riod. 117 The interrelationship of leadership and the lack thereof by the chiefjudge and of the socialization and personal growth of new court members canbe 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 con-servative rather than liberal outcomes in the civil rights and liberties cases.Slightly more than 50% of the civil rights and liberties cases were resolvedagainst individual freedoms and in favor of the state or institutions. 1 8 Thusthe court during these terms can be described as being slightly more likely tofavor conservative positions than liberal ones in civil rights and libertiessituations.

The individual preferences of the judges in these cases seem capable ofdivision into two groups. Four judges (Wachtler, Simons, Hancock, and Bel-lacosa) 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 "dominantforce" on New York Court of Appeals).

116. See Richard A. Brisban, Jr. & John C. Kilwein, U.S. Supreme Court Review of StateHigh Court Decisions, 78 JUDICATURE 33, 36 (1994) (finding Supreme Court usually affirmed orremanded state supreme court cases on criminal procedure issues between 1953 and 1990); butcf. id. at 37 (noting that Rehnquist court was more likely to reverse or remand state criminalprocedure cases in conservative manner). It must be emphasized that the trend toward moreliberal positions in New York identified by the authors is replicated in the broader subject cate-gories in this study. Id. at 38-39. This suggests that the United States Supreme Court's role asthe 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 theUnited States Supreme Court.

118. See Appendix, Table B for data revealing the conservative voting preferences of theWachtler court during the years of the study.

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to each other. Similarly, the more liberal judges expressed preferences thatwere comparable to each other.119 The clear delineation of different prefer-ences contrasts with the judges' common preferences in criminal cases.

2. Assessment

The court's conservative preference, even if a narrow one, is unexpectedin light of its long recognized commitment to progressive protection for civilrights and liberties, a preference which other researchers have docu-mented.120 A majority group of Wachtler, Simons, Hancock, and Bellacosaprovided the basis for the court's preferred conservative outcomes. 121 Wach-tler's leadership in forging this group is a plausible explanation for the court'spreference. As a potential candidate for governor and an apparent suitor ofa U.S. Supreme Court appointment by a conservative Republican president,Wachtler had much to gain by portraying himself on the conservative end ofthe spectrum.

Support for this position from Simons and Bellacosa is not surprisingconsidering their pro-prosecution (generally considered a conservative view)preferences in criminal cases.122 Moreover, Bellacosa was a long-time friendand 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 con-sisted of a woman without prior judicial experience (Kaye), an African-American (Alexander), and an Italian-American (Titone), all of whom mightbe characterized as "outsiders" less prone to the influence of the chief judge.Bellacosa's longstanding friendship with Wachtler and prior service in leader-ship roles in the state judiciary, including as Clerk and Counsel of the NewYork Court of Appeals and as Chief Administrative Judge (serving with andunder Wachtler in both capacities), could have diminished any "outsider"tendencies as an Italian-American, factors which might distinguish Titonefrom Bellacosa. Titone, as well as Alexander, however, had served lengthyterms in the state lower appellate courts, so they are difficult to characterizeas outsiders in the same way as Kaye. Of course, Kaye's extensive experi-

119. See Appendix, Table B.120. See, e.g., Bonventre, Court of Appeals, supra note 34, at 50 (observing court's increas-

ing lack of sympathy towards civil rights and liberties claims in recent years); Bonventre, supranote 64, at 1196-98 (noting conservative preference of court in 1990 and 1991); Bonventre, supranote 9, at 1165 (describing record of court during later Wachtler era on state constitutional issuesas "pro-government" and "pro-prosecution"); Bonventre, State Constitutional Adjudication,supra note 34, at 120 (observing conservative trend on court regarding civil rights and libertiesissues); Bonventre & Powell, supra note 36, at 55-56 (describing traditional role of court ofappeals 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 onstate constitution to decide civil liberties issues).

121. See Appendix, Table B for data revealing the conservative voting preferences of thisgroup.

122. See Appendix, Table A for data revealing the pro-prosecution bent of Judges Simonsand Bellacosa.

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ence as a litigator before appointment to the judiciary provided substantialexposure to the dynamics of traditional means of judicial behavior.

C. Judicial Federalism Cases

1. Preferences

The court of appeals adopted the federal constitutional position almosttwice as often as an independent state constitutional ground in the casesresolving whether to accept federal constitutional doctrine or a different stan-dard under the state constitution. 123 In the thirty cases in this category, thecourt of appeals adopted an independent state ground in only twelve, or40%, of the cases.124 This pattern reveals the court's preference for the fed-eral constitutional standard as opposed to an independent state rule derivedfrom the New York Constitution.

The individual preferences of the judges are capable of division into sep-arate groups. Three judges (Wachtler, Simons, and Bellacosa) preferred fed-eral constitutional grounds more often than the court while the remainingfour judges preferred independent state constitutional rules. Although thejudges preferring the federal grounds registered similar rates, those moreamenable to independent state grounds varied more in their preferences. Forexample, Titone was most supportive of independent state grounds at almost80%, Kaye was at 69%, and Alexander and Hancock were more evenly splitin their support of the different rationales. 25 This posture suggests that thethree judges favoring federal grounds were rather firm in their support whilethe others, except perhaps for Titone, were more amenable to accepting an-other position. It is noteworthy that Wachtler, Simons, and Bellacosa againappear firmly on the same side of the scale.

2. Assessment

The court's strong preference for the federal constitutional position in-stead of independent state grounds is unexpected from a court that has longbeen at the forefront of independent state decision-making and that has beencharacterized as having a high commitment to using state law grounds. 26 Itis particularly noteworthy because several members of the court of appealshad gone out of their way to express strong support for basing decisions onthe state constitution. 27 The preferences of Wachtler and Bellacosa for thefederal 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 constitutionaldecision-making.

128

Wachtler's ambition for the governorship or higher judicial office mayexplain his preferences for comparatively conservative federal doctrine. Ifso, Bellacosa's preferences mirroring those of his long-time friend and col-league are understandable. Simons' preference for the federal constitutionalposition coincides with his clearly expressed view that deference should bepaid to federal constitutional doctrine. 129 The similar preferences of Wach-tler, Simons, and Bellacosa for federal constitutional rules at a time of con-servative decision-making at the U.S. Supreme Court an be described asconsistent with the pro-prosecution and conservative preferences displayedin the categories already examined.

Titone and Kaye's more regular support for independent state constitu-tional grounds, unlike the situation with Wachtler and Bellacosa, is consistentwith their extrajudicial pronouncements on the topic130 and compatible withmore liberal preferences in the other categories. The more mixed prefer-ences by Alexander and Hancock may reflect some accommodation to thechief judge, as at least Hancock has indicated that he favored no particularideological approach in resolving cases raising state constitutional issues. 13'These latter judges' less dogmatic preferences in judicial federalism cases ap-parently afforded the Wachtler, Simons, and Bellacosa grouping the opportu-nity 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 widemargin. Almost two-thirds of the thirty-five Cuomo Agenda cases decidedby the court during this period were resolved in favor of the Cuomo-sup-ported position. 132 Thus, the Court of Appeals favored Cuomo-supportedpositions by an almost 2 to 1 margin.

The individual preferences of judges in Cuomo Agenda cases seem divis-ible 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 onstate constitution, which provides greater protections for individual rights than federal Constitu-tion); Wachtler, Constitutional Rights, supra note 35, at 23 (praising state courts for turning tostate constitution more frequently in recent years, since state constitution offers greater protec-tions 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., concur-ring), 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 YorkCourt of Appeals).

131. See Hancock, supra note 35, at 286-87 (setting out alternate methodology for decidingcases 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, preferringthis outcome between 42% and 48% of the time. Bellacosa was most sup-portive, preferring the Cuomo position in three-quarters of the cases. Wach-tier was next in support for Cuomo. On the other hand, Alexander andTitone were least supportive of Cuomo, both preferring the Cuomo positionjust over 40% of the time, with Hancock favoring the Cuomo-supported out-come at a rate of just under 50%.133

2. Assessment

The court of appeals' support for Governor Cuomo's position could eas-ily be attributed to the judges' allegiance to their primary benefactor; afterall, Cuomo appointed each of them to the court of appeals. But this explana-tion seems too simplistic. For example, both Bellacosa and Titone were long-time friends and allies of the governor, yet their voting preferences in thesecases are at the opposite extremes. Wachtler, a long-time friend but nowpotential political foe of Cuomo, with whom he bitterly clashed over courtfunding,134 registered strong support for the governor's programs. Littlepolitical benefit could come from this support.

From another perspective, however, the support for the Governor's pro-grams by Wachtler, Simons, and Bellacosa can be explained as consistentwith these judges' preferences in the other categories. By approvingCuomo's positions, these judges registered support for acts of governmentthat had received approval in the democratic process. In this way, the judgescan be seen as not simply approving Cuomo's agenda, but rather as deferringto the more representative branches of government. An approach of this sortin the Cuomo Agenda cases would be analogous to the conservative prefer-ences 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 Con-stitution in judicial federalism cases. Considering his reported aspiration to aU.S. Supreme Court that was in many ways supportive of and deferential toduly-adopted programs of the more democratic branches, Wachtler's strongsupport for Cuomo positions enacted through democratic means would makesense under this scenario. His influence as Chief Judge can be seen to havehad mixed success, in light of the variable preferences of the judges in thiscategory.

E. Summary

The court of appeals seems to have preferred the prosecutor in criminalcases, the state in civil rights and liberties cases, the federal approach in judi-

133. Id.134. See supra notes 80, 105-06, and accompanying text for a description of both the rela-

tionship between Wachtler and Cuomo and of Wachtler's own political ambitions as portrayed innewspaper 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 wouldseem contrary to the traditional progressive reputation of the court of ap-peals. These preferences, however, can be seen as responsive to societal con-cerns about increased crime and excessive concern for criminal defendants,and to public support for duly-enacted governmental programs initiated byCuomo, who won reelection in 1986 and 1990 by landslide proportions. Inthis 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 achief judge who may have been posturing for other public office, whether arun for governor or appointment to the U.S. Supreme Court. Under thisscenario, the court of appeals' preferences during these terms are more un-derstandable. The judges, most of whom served on or practiced in lowerstate courts where they exercised a subordinate role, can be seen as followingthe leadership of a charismatic and popular chief judge and agreeing to themore conservative outcomes. The consistent voting of Simons and Bellacosafor the same preferences as Wachtler, with occasional joinder by Kaye, Alex-ander, and/or Hancock, indicates that Wachtler might have exerted influenceon the court's members. The drift toward more pro-defendant outcomes inthose terms when Wachtler might have been most distracted from the busi-ness of the court and when the associate judges had gained more experienceand confidence in their roles provides added support for the importance ofWachtler's leadership role in determining voting preferences. These differenteffects are analogous to Chief Justice Warren's strong leadership of theSupreme Court in the 1960s and Chief Justice Burger's less effective leader-ship 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 isthe extent to which the court decided cases without concurrences and dis-sents.136 The court decided cases with all judges agreeing in a single opinionapproximately four-fifths of the time in each term, with the highest rate at87% in 1987-1988. Concurrences were rather infrequent, never occurring inmore than 6% of the cases per term. Dissents appear in no more than one-fifth of the cases per term, with the rate per term falling between 10% and20%.137 This court acted with consensus.

The court's high agreement rate also is seen from the extent to which thejudges 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 thesespecific 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 inthe court's plenary civil caseload, 139 the strong tendency for agreement withthe majority is not surprising. The court of appeals seems to have had a com-mon approach to resolving its cases.

Wachtler voted with the majority most often of all the judges, having thehighest rate of majority agreement in each term (tying with others in twoterms). By contrast, Titone voted with the majority least often in every term,with the lowest rates of majority agreement (tying in 1987-1988). In additionto having the lowest rate of majority votes in each term, Titone was the mostprolific dissenter in each term but one (1987-1988).140 Notably, despite his"disagreeability," Titone agreed with the majority in at least nine out of tencases in each term. The other judges fall within the narrow range betweenWachtler and Titone. 14'

B. Civil Cases

The voting pattern of the court of appeals in civil cases resembles that inthe overall plenary caseload. The rate at which civil cases were decided withall judges in agreement on the rationale ranged between 80% and 85% perterm with concurrences in no more than 6% of the civil cases per term. Dis-sents appeared in between 13% and 17% of the civil cases per term. 142 Thepremium put on agreement in resolving cases on the merits remainsapparent.

This emphasis on consensus also appears in other voting characteris-tics. 143 All judges in all terms voted with the majority at least 90% of thetime, with the corresponding lack of concurrences and dissents. Wachtler ledor was near the lead in joining the majority the most in each term. Titonewas the judge with the most concurrences and dissents in three terms, withBellacosa 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 thanin the other categories described but only slightly sO. 145 Agreement on therationale 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. See Appendix, Table D.139. 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%).140. See Appendix, Table D.141. Id.142. See Appendix, Table C.143. 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 propor-tionally more cases than in the overall and in civil caseloads in each term but1987-1988, appeared in about 20% of the cases in each term, except for thatfirst term with only a 7% dissent rate.146 Even though the criminal caseswere more contentious than civil cases, consensus prevailed.

These trends also are seen in other aspects of voting patterns in criminalcases.147 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 thetime in all terms except 1987-1988, and Alexander, who voted with the ma-jority 89% of the time in 1988-1989. Wachtler was the judge most often withthe majority in each term except 1987-1988, when he was just behind Simons,the leader that term. Titone registered the most concurrences and dissentseach term. 148 The court was rather agreeable in criminal cases, as in overalland civil cases.

D. Civil Rights and Liberties Cases

The court's emphasis on consensus seems to have broken down slightlyin the civil rights and liberties cases. 149 Only slightly more than one-half ofthese cases were decided without separate concurrences and/or dissents, withconcurrences 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, withjoinder with the majority between 79% and 89% of the time.15' The extentof agreement for most judges is apparent. Wachtler did not lead the group injoining the majority in these cases, but he was only slightly behind Simons,the leader in this category, and tied with Hancock. Titone most frequentlyconcurred and dissented, but even he agreed with the majority about four-fifths of the time. 152 In these cases, the court of appeals seems to have beenseeking 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 judicialfederalism cases. 153 All judges agreed to a single opinion in only about one-fourth 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 thanany other issues in past decade).

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and dissents in about two-thirds. 154 Likewise, the judges' failure to join inthe majority is more evident in this category than the others.155 Four judges(Wachtler, Simons, Alexander, and Hancock) agreed with the majority in be-tween 80% and 87% of these cases and three judges (Kaye, Titone, and Bel-lacosa) voted with the majority only two-thirds of the time or less, althoughno judge voted with the majority less than 58% of the time. Wachtler waswith the majority the most often and Titone the least, although Kaye andBellacosa registered only one less concurrence and dissent than Titone.156

The court apparently encountered difficulty in finding common ground inthese cases.

F Cuomo Agenda Cases

The judges also disagreed about the resolution of Cuomo Agendacases.157 The court was in agreement without separate opinions in thesecases only slightly less than one-half of the time. Although concurrenceswere rather infrequent, dissents appeared in about half of these cases. 158 Thejudges' rather variable voting patterns also illustrate the difficulty in reachingargreement in these cases. 159 Three judges (Wachtler, Simons, and Kaye)joined the majority in more than 90% of these cases; two judges (Alexanderand Bellacosa) joined the majority 82% of the time; and two judges joinedthe majority less than 75% of the time (Hancock at 74% and Titone at68%).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 hasbeen recognized 16' and apparently is long standing.' 62 The judges' votingpatterns in the broad case categories tend to confirm this tendency for con-

154. See Appendix, Table C.155. See Appendix, Table G for data concerning voting patterns in specific subject

categories.156. See Appendix, Table G.157. See 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 incases decided between 1933 and 1971); Posner, supra note 39, at 80 (noting scarcity of concurringor dissenting opinions written by Cardozo court); id. at 13 (describing Cardozo era as "exampleof 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 theoverall cases per term, and in about the same rate in civil and criminalcases, 164 demonstrates that New York's high court judges have little propen-sity to express individual views. This preference for consensus stands inmarked contrast to the U.S. Supreme Court's decisions, which far more oftenthan not are marked by concurrences and dissents and a fair number ofpluralities.

The small number of concurrences and dissents and the high rate ofagreement with the majority may be unexpected in light of the court's discre-tionary jurisdiction, which should have allowed the court of appeals tochoose 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 opportu-nities for concurrences and dissents provided by the court of appeals' discre-tionary jurisdiction does not seem to have materialized.

The effect of Wachtler's leadership may provide a better explanation forthe minimal amount of concurrences and dissents. Wachtler's expressed em-phasis on consensus in decision-making harkened back to the court of ap-peals' high prestige era under Cardozo, when civility was the norm.166 As asavvy, charismatic, and popular chief judge, Wachtler's objective in this re-gard might well have swayed the court toward agreement. Much like a mir-ror 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. Ofcourse, this high rate of consensus remained evident even in 1990-1991 and1991-1992,167 the terms when Wachtler might have been distracted fromcourt duties, creating a vacuum in which more concurrences and dissentsmight have been possible. Wachtler's leadership, then, may not provide acomplete explanation.

Another related possibility is that the judges' common backgrounds andperspectives have constrained any impulses to express disagreement. Havingbeen socialized in the state's lower judiciary, most of the court of appealsjudges can be seen as adhering to familiar voting patterns; the appellate divi-sion has been viewed as deciding most cases without separate expressionsthrough concurrences and dissents. 168 Moreover, these judges themselves

163. See Appendix, Table C for data confirming the high degree of consensus amongjudges.

164. See Appendix, Tables E-F.165. See Halpern & Vines, supra note 13, at 471 (noting that dissents were written in two-

thirds 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) (observingthat 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 simi-larly important role for the court. Possibly, then, the court of appeals judgesstifle individual expression because such a pattern of conduct is expected inthe New York judiciary.

This expectation for consensus at the New York high court contrastswith the prevailing practice of divided opinions at the U.S. SupremeCourt,169 despite the fact most judges on both courts now have experience onlower courts where unanimity is the norm. The Supreme Court, in contrastto the New York Court of Appeals, now has a long tradition of dissensionthat may effectively undercut the justices' previously internalized expectationfor agreement. The influence of norms and expectations appears strong.

If this is so, Titone and Bellacosa offer interesting contrasts. As alreadynoted, Titone has been the court's most prolific voter outside the majority,usually in dissent. 170 Titone's experience in the appellate division, where in-dividual expression through separate opinions is unusual, would seem con-trary 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 mostprolific dissenters. 171 Nonetheless, Titone's tendency for individual expres-sion comports with voting patterns at the U.S. Supreme Court after the en-actment of the Judges' Bill of 1925,172 albeit in a less extreme manner. Thenumber of Titone's concurrences and dissents has not seemed to cause muchconcern as there has been little comment on his propensity in this regard.

In contrast, the number and rate of Bellacosa's concurrences and dis-sents fell typically within the mid-range of the court of appeals judges andnowhere near the high rates of separate voting at the U.S. Supreme Court.Nonetheless, some of Bellacosa's separate writings stand out as harsh andangry in tone,173 certainly different from the concurrences and dissents ofother court of appeals judges. These expressions by Bellacosa can easily becharacterized as the kind of judicial writings that have engendered criticismfrom leading jurists.' 74 Moreover, Bellacosa's writings are particularly note-

169. Howard's study of the Courts of Appeals of the United States reveals that most of thedecisions of these federal courts are unanimous. J. WOODFORD HOWARD, COURTS OF APPEALSIN THE FEDERAL JUDICIAL SYsTEM 42, 193-96 (1981) (examining conflict in circuit courts); seealso 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 theNew York Court of Appeals, 4 ST. CONST. COMM. & NOTES 1, 3-4 (1993) (describing Bellacosa'sdissent 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 asingle opinion and traditionally has emphasized civility in its opinionwriting.

175

It is relatively easy to trace the development of Bellacosa's distinctiveseparate writings. As early as his first full term on the court, Bellacosa wrotestrongly phrased opinions, especially when writing alone. In Boreali v. Axel-rod,176 Bellacosa was the sole dissent from the court's holding that the statePublic Health Council had exceeded its statutorily delegated authority inpromulgating regulations against smoking in public. 177 Bellacosa chastisedthe court for the practical effect of its decision, writing that the Public HealthCouncil's efforts to protect nonsmokers "is crushed without analytical orprecedential justification. That is the human dimension of this case which thecourt cannot avoid, however awkwardly it tries, by its dry doctrinal discus-sion."'1 78 His placing of blame on the court's majority for any detrimentalpublic effects of the court's decision is as remarkable as his use of an excla-mation point in his argument, 179 considering the usual congeniality of courtof appeals opinions.

Similarly, in People v. Harris,180 Bellacosa, this time joined in dissent byWachtler, criticized the majority for adopting a state constitutional rule moreprotective of individual rights than required by federal constitutional searchand seizure doctrine, writing that the majority had "to stretch precedent andtwist logic" to reach its result. 181 He further accused the majority of intellec-tual and analytical inconsistency, and of engaging in "institutional egocentric-ity, a kind of Copernican view of the judicial universe.' 182 This type ofcritical exposition apparently has contributed to Bellacosa's distinctive writ-ings that can be characterized as disagreeable and not judicious. On a courtthat traditionally has prided itself on consensus and congeniality, the harshtones of some of Bellacosa's separate opinions stand in marked contrast tothe norm.

Bellacosa does not, however, always exhibit this vehemence or discor-dant 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 NewYork who have served before and during Bellacosa's tenure confirm that the tenor of some ofBellacosa's separate opinions were troublesome. This is consistent with the views expressed byBellacosa'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 andconsensus 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 employedin 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 mannerin which he would have decided the case, together with objective deficienciesin the majority's rationale. 184 These opinions by Bellacosa, joined by a judgeother than his close friend and apparent ideological ally Wachtler, who maybe able to influence the tenor of the opinions, are more restrained in toneand closer to the more "civil" dissent that garners greater acceptance in con-ventional judicial circles, especially those at the court of appeals.

That some of Bellacosa's separate opinions were of this more civilsort185 may only serve to draw attention to his more strident writings, whichcan be denigrated as failing to exhibit collegiality by those more accustomedto consensus and civility. Bellacosa's meteoric rise from nonjudicial Clerkand Counsel of the New York Court of Appeals to associate judge' 86 mightwell have affected the way in which he expressed himself in separate opin-ions. Clearly his path to the bench is unique among the members of thecourt, all of whom had significant practical experience in the state judicialsystem as a practicing judge and/or attorney before appointment to the courtof appeals. This prior service could easily have left these judges fully social-ized to the standard operating procedures of the New York judicial system,such as acting in more collegial and congenial ways when exercising theirindependent decision-making authority on the court of appeals.

Without prior practical experience in private legal practice or as a trialor appellate judge,187 Bellacosa had not undergone the socialization that cancontribute to more experienced members of the bench and bar conforming toprevailing patterns of conduct. Indeed, Bellacosa's extensive experience asClerk and Counsel of the Court of Appeals and as Chief AdministrativeJudge with oversight and supervisory responsibilities vis-a-vis other judgesmay have inhibited his acuity in adapting to prevailing practices. It is note-worthy that Bellacosa seems to have tempered his remarks when faced withsome influence from certain colleagues, as in People v. Moquin,188 which mayseem comparable to how Chief Justice Rehnquist's conservative rhetoric hasbecome more restrained with the demands of leadership.' 89 The interplay ofleadership, influence, and socialization at the court of appeals thus can beseen 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 asadministrative head of the New York court system, and his appointment to the Court of Appealscame less than two years later.

187. See supra notes 65 and 186, and accompanying text, for a description of the career pathof 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 becharacterized as somewhat different than in the more broad categories.There is a greater propensity for the judges to vote independently throughconcurrences and dissents in the civil rights and liberties cases, the judicialfederalism cases, and the Cuomo Agenda cases. 190 Indeed, the data clearlysupport Kaye's acknowledgement that the court's inability to reach consen-sus is most apparent in judicial federalism cases. 19 1

An obvious possible explanation for this greater propensity for disagree-ment in these cases is that the court's discretionary jurisdiction provided in-creased 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 similarlycontentious cases. Also, certain of the specific subject categories, such as thecivil rights and liberties cases, did not engender nearly as many disputes asothers, such as the judicial federalism cases. The effect of the court of ap-peals' discretionary jurisdiction may not adequately explain the greater dis-sension in the more specific case categories considering the overall highunanimity rate. After all, the U.S. Supreme Court exhibited a greater pro-pensity for dissent after it received discretion over its plenary caseload.

Perhaps certain specific subjects, such as judicial federalism, presentedparticular difficulties for some judges because they had to resolve competingmotivations. For example, in the judicial federalism category, the judgesfaced particularly difficult questions about fundamental aspects of society inthe context of state constitutional analysis, an area of law that was receivingincreasing attention and criticism and that provided easy, if superficial, com-parisons to federal constitutional analysis. The pressures to elaborate the de-veloping concepts and ideas may have contributed to more frequentconcurrences and dissents. If so, Wachtler's rhetoric favoring independentstate constitutionalism, combined with his voting preference for federal con-stitutional doctrine, might have presented mixed signals to those judges whosupported independent state constitutional grounds but also felt deference tothe chief judge. Attempting to reconcile these competing motivations, in ad-dition to the other pressures described above, might have contributed tothese judges feeling compelled to explain themselves in concurring or dis-senting opinions.

Indeed, it appears that Kaye and Titone, whose votes express perhapsthe strongest commitment to independent state constitutionalism, resolvedthese dilemmas by often casting concurring and dissenting votes; Hancock,who lacked commitment to any particular approach in judicial federalismcases, might have been more amenable to follow the majority. Simons, whopreferred to address federal doctrine before even considering the applicabil-

190. See Appendix, Table C for data revealing higher percentage of concurrences and dis-sents in these types of cases.

191. See People v. Scott, 593 N.E.2d 1328, 1346 (N.Y. 1992) (Kaye, J., concurring) (notingthat 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 fol-lowed federal rules.

Bellacosa's tendency to concur and dissent in judicial federalism caseseven though his votes reveal strong agreement with the court's preferred fed-eral position perhaps is more difficult to explain. Some of Bellacosa's moststrongly worded writings emerged in judicial federalism cases and did notescape the criticism of his colleagues. For example, in the companion casesof People v. Scott1 9 2 and People v. Keta,193 the court of appeals confrontedthe question of whether the state constitutional proscription against unrea-sonable searches and seizures' 94 permitted warrantless searches of "openfields" and vehicle dismantling businesses, which the U.S. Supreme Courthad held authorized under the Federal Constitution. 195 In deciding that thestate constitution provided greater protection of individual rights and liber-ties than the Federal Constitution, a four-judge majority reviewed the partic-ular circumstances affecting New York's guarantee against unreasonablesearches and seizure and rejected the Supreme Court precedent permittingthe warrantless searches.

In dissent, Bellacosa suggested that the court of appeals' "declaration ofindependence from the Supreme Law of the Land ...propels the Courtacross a jurisprudential Rubicon into a kind of Articles of Confederationtime warp."'1 96 Bellacosa rejected the majority position "because no appro-priate basis, unique to New York, has been advanced warranting this double-barrelled declaration of peculiar New York-style separatism."' 97 In responseto this strongly worded indictment of the majority's actions, Kaye wrote aconcurrence noting, perhaps charitably considering Bellacosa's propensityfor acerbic opinions, that the dissent "is distinctive only in the tone of itsexpression.' ' 98 In eloquent terms that stand in marked contrast to the tenorof Bellacosa's dissent, Kaye proceeded to justify independent state constitu-tional decision-making as appropriate under the federal constitutionalsystem.

Several factors may explain the extreme tone expressed by Bellacosa inthese state constitutional cases. First, this kind of case would have presentedparticular difficulties for Bellacosa if his earlier-expressed support for in-dependent state constitutionalism was sincere.' 99 Trying to justify as a matterof 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 warrantlesssearch of open field constitutional).

196. Scott, 593 N.E.2d at 1348 (Bellacosa, J., dissenting) (citing People v. Harris, 570 N.E.2d1051 (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 approachand his own public acknowledgment of the value of independent stateconstitutionalism might have provoked the dissenting diatribe.

Also, Scott and Keta were decided during the time that Wachtler's dis-traction from the court's work (due to the budget battle with the Governorand his own criminal conduct) might have been at its zenith, thereby provid-ing Bellacosa with additional incentive to provide a strongly worded justifica-tion for a position that his long-time friend, the chief judge, could join, asWachtler did. It similarly is worth noting that Simons, a serious and skillfuljurist,20 0 uncharacteristically joined Bellacosa's strongly worded dissent inthese cases; 20 1 Simons never joined another dissenting or concurring opinionauthored by Bellacosa in the judicial federalism cases, despite similar prefer-ences in these kinds of cases.20 2 Indeed, contrary to the court of appeals'usual practice whereby the junior judges have responsibility for writing dis-sents,20 3 Simons, the more senior jurist, authored the separate opinions injudicial federalism cases where Simons and Bellacosa expressed views differ-ent from those of the majority.2° 4 It was, however, during the period whenScott and Keta were being considered that Simons' wife was administereddrugs improperly during a hospitalization and tragically and unexpectedly

200. See, e.g., Bonventre, supra note 9, at 1164 n.5 (commending interim leadership of courtby 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); Peoplev. 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 madein accordance with a long-standing tradition that is decidedly low tech. At the conclusion of asession of oral argument, each judge, in order of seniority, randomly chooses an index card onthe back of which the name of a case that was argued is written. The judge becomes responsiblefor preparing an initial report on that case, which will provide the basis for preliminary discus-sion about the case during the court's conference. The conference discussion proceeds in reverseorder of seniority, with voting also accomplished in this manner. If the judge initially reportingretains a majority, that judge typically will write the court's opinion; otherwise, the most juniorjudge in the majority receives that assignment. If a dissent is to be written, the first judge raisingdisagreement, usually a judge with lesser seniority considering the way discussion and votingproceed, will draw that assignment. See generally Frank H. Hiscock, The Court of Appeals ofNew York: Some Features of its Organization and Work, 14 CORNELL L. REV. 131, 138 (1929)(explaining that Court of Appeals judges receive cases by rotation); Judith S. Kaye, The Impor-tance 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 Procedures and Conference Practices in State Supreme Courts, 73 JUDICA-TURE 209, 212 (1990) (arguing that procedure for assigning cases in New York Court of Appealsis "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 bySimons), 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 orconcurrence in the "Civil Rights and Liberties" and "Cuomo Agenda" categories.

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died.205 This personal catastrophe might well have distracted Simons' atten-tion and thereby inhibited him from exerting restraint to temper the tone ofBellacosa's language or even taking over the dissent writing responsibility.

These circumstances suggest that a variety of factors contributed to thesejudicial federalism opinions. The impact of ideological predispositions andconformity to standard operating procedures interacted in ways that contrib-uted to a highly unusual exchange at the court of appeals. Although thesefactors mirror those identified as affecting the patterns and preferences in themore specific case categories, their combination or presence in cases involv-ing questions of fundamental importance-the state constitution-that hadbeen addressed by at least some of the judges in extrajudicial writings mighthave affected the decision-making in distinctive ways. Thus the tenor of Bel-lacosa's dissent in Scott and Keta might not have been particularly unusualfor him, especially considering his relationship with the distracted chiefjudge, but Simons' tacit endorsement of it and the strongly worded responsesto it are unique in the annals of the usually congenial court of appeals. Fromthese perspectives, the effects of leadership, influence, and socialization onstate constitutional decision-making become apparent.

Thus we see that, although the court of appeals clearly emphasized con-sensus in its decision-making, in the more specific subject categories, and es-pecially in the judicial federalism category, agreement by all seven judges wasmore elusive. 2°6 This suggests that the court of appeals' jurisdictional controlover its plenary caseload did not promote divided decision-making. Titone,the court's "rebel" with the most concurrences and dissents, voted with themajority in most cases in most categories. 20 7 Even Bellacosa's intemperatelanguage did not infect all his separate opinions. The court of appeals seemsto have emphasized consensus despite its ability to choose for its plenarycaseload the important cases that can provoke disagreement. Unlike theU.S. Supreme Court, where discretionary jurisdiction promoted divided deci-sion-making, the court of appeals' voting patterns do not seem to be a conse-quence of the court's discretionary jurisdiction.

Rather, it appears that the leadership of the chief judge and the back-grounds of the judges in New York's generally unanimous lower appellatecourts and as observers of the standard operating procedures for the NewYork Court of Appeals encouraged consensus and congeniality at NewYork's high court. This contrasts with the United States Supreme Court,where Chief Justice Stone helped entrench common dissenting practices andwhere formerly agreeable U.S. Courts of Appeals judges find much to disa-gree about. Wachtler's objective for consensus is consistent with his usualvotes in the majority, which could have provided leadership by example.

205. Jane Fritsch, Syracuse Hospital Admits 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 dissentsassociated with these categories of cases.

207. See Appendix, Table G for data showing that Titone voted with the majority in mostcategories in most cases.

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Most of Wachtler's colleagues' experiences in the lower judiciary, where una-nimity seems to prevail, not only could have promoted joining in the majoritybut also could have limited their motivation to write concurrences and dis-sents notwithstanding the court of appeals' discretionary jurisdiction.208 Thecourt's traditional emphases on civility, consensus, and deference to the chiefjudge 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 tocompeting values presented by these cases. The judges had to balance con-flicting motivations, including ideological preferences, emphasis on consensusand congeniality, and deference to the chief judge, which might have resultedin the higher incidence of concurrences and dissents observed in these cases.Likewise, these factors might well have contributed to the distinctive disa-greeable tenor of Bellacosa's separate writings. The interrelationship ofthese factors suggests that decision-making in cases raising state constitu-tional issues occurs in more complicated and dynamic ways than in othercases, as additional motivations and pressures must be integrated in the deci-sion-making process.

Yet, the important factors that seem to affect decision-making at thecourt of appeals generally-the emphasis on consensus and civility that de-rives from the court's traditional approach to resolving cases, the backgroundof judges whose prior experiences largely are in the deferential lower judici-ary, and the effects of leadership and influence-play important roles in thestate constitutional cases. The case categories may change and the dynamicsmay change, but the basic factors underlying decision-making propensitiesremain the same.

V. VOTING ALIGNMENTS

A. Voting Pairs

1. Overall Cases

The methodology used in this study for determining when pairs of judgesvoted together may tend to depress the rates of agreement, which are basedon joinder in opinions and not on joinder in outcomes. The U.S. SupremeCourt has seen interagreement rates between justices as high as 95% and aslow as 4%.209 Notwithstanding these extreme voting patterns, interagree-ment rates of 70% and 80% have been characterized as rather strong. 210

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, wherefour of the seven Court of Appeals judges had previously served) has mostly mandatory juridic-tion. 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 therates at which each judge joined another judge in support of particular opin-ions in cases with concurrences and dissents in the overall caseload.211 Inthree of the five terms studied, the pair most often in agreement was Wach-tier and Bellacosa; in the other two terms, it was Wachtler and Simons, withthe 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 theother terms it was Alexander and Bellacosa, and it was Hancock and Bel-lacosa in the other term. Rates of agreement varied for other pairs in otherterms; for example, agreement of voting pairs involving Kaye, Alexander,Titone, and Hancock would fluctuate from term to term, without discernablepattern. The extent of each of these four judge's agreement with Wachtlerand Simons also seemed rather variable.212

These voting alignments are further seen in the voting pair data for allcases with concurrences and dissents in the 1987-1992 terms.213 The pair ofWachtler and Bellacosa agreed more often than any other pair, with theWachtler and Simons pair close behind. The pair of Titone and Bellacosahad the least agreement, with the Hancock and Bellacosa pair and Titone andSimons pair in agreement nearly as infrequently. The variability of agree-ment of other pairs apparently put them in between the extremes exhibitedby these pairs.214

Titone and Bellacosa issued sole concurrences and dissents most often.Wachtler was the least likely to be voting alone, even failing to vote aloneonce during whole terms. The other judges were closer to Wachtler thanTitone and Bellacosa in their propensities to vote independently of any otherjudge.215

2. Civil Rights and Liberties Cases

In these cases, Wachtler and Bellacosa are the pair with the most agree-ment.216 The pairs of Simons and Hancock, Wachtler and Simons, Wachtlerand Hancock, and Wachtler and Kaye also show high agreement. On theother hand, the pair of Wachtler and Titone and Simons and Titone are inagreement least often, with Titone and Hancock and Titone and Bellacosaagreeing almost as infrequently. Again, Titone and Bellacosa vote alonemost frequently.217

211. See Appendix, Tables H-L for data concerning the voting alignments found in the fiveterms 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, Wachtlerand Simons are the pair most often in agreement, with the pairs of Kaye andAlexander, Wachtler and Bellacosa, and Simons and Bellacosa agreeing al-most as often.218 Titone and Bellacosa agree least often, with the pairs ofSimons 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 agreeingmost often.219 Titone and Bellacosa are the pair in agreement the least.Again, Titone and Bellacosa are the most frequent independent voters, withSimons the only other judge voting alone in this category. 220

5. Assessment

The juxtaposition of pairs involving Wachtler, Simons, and Bellacosa asthose with the highest agreement and of pairs involving these three judgeswith Titone as those with the lowest agreement in several categories is note-worthy. Wachtler, Simons, and Bellacosa had the court's most conservativepreferences in several categories, with Titone seen as the most liberal. Thehigh amount of agreement by pairs made up of the former judges and the lowamount of agreement when they are paired with the latter judge tend to con-firm that these judges did not have similar approaches in the most divisivecases. When these judges disagreed, they seem to have really disagreed, incontrast to the more moderate voting agreement of most other pairs.

Wachtler's influence as chief judge on colleagues who had previous ex-perience in the New York judicial system and were well-steeped in the moresof the court of appeals might well have been at work here. If Wachtler,Simons, and Bellacosa presented a core conservative position, Wachtler'sleadership might have provided the element necessary to convince others tovote in agreement and thereby attain a majority. The amount of agreementof Kaye, Alexander and Hancock in pairs with Wachtler and Simons are vari-able and could have supported this scenario. In this way, Wachtler's leader-ship, exerted on judges with substantial experience in subordinate roles in thejudicial system that emphasize deference to higher judicial authority and whoperhaps were influenced by the tradition of deference to the chief judge ofthe court of appeals, could have been an effective tool in forging the majoritynecessary to score conservative preferences.

Bellacosa's role in this scenario does not lend itself to an easy explana-tion. On the one hand, Bellacosa offered Wachtler a handy ally who could

218. See Appendix, Table 0 for data revealing voting alignments in judicial federalismcases.

219. See Appendix, Table P for data concerning voting alignments in the Cuomo Agendacases.

220. See Appendix, Table P.

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have assisted in executing Wachtler's leadership roles, as associate justiceshave enhanced chief justices' leadership capabilities on the U.S. SupremeCourt. On the other hand, Bellacosa's independence in opinion writing, asseen in his distinctive separate expressions, might well have undermined thisrole for him on the court of appeals. Bellacosa did not exhibit particularlyhigh rates of agreement (certainly not as high as Wachtler) with Kaye, Alex-ander, or Hancock. Bellacosa's independent, sometimes acerbic approach tocases might have put off these judges, even if their agreement with Wachtlerindicates that they were not consistently put off by a conservative position orby Wachtler's tendency to join Bellacosa. The power and prestige of thechief judge might well have made the difference despite Bellacosa's presence.

In this view, Simons might have taken on a particularly important roleon the court of appeals. Despite his consistently conservative preferences,Simons shows moderately high, albeit variable, agreement with others, ex-cept maybe Titone. Simons might have provided the bridge to the otherjudges in reaching consensus for the conservative positions. As suggestedearlier, he might also have served as a restraining influence on Bellacosa, atleast 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. Scott22 1 andPeople v. Keta,222 the sharply divided judicial federalism cases in which Bel-lacosa wrote the very terse, belligerent dissent. Simons uncharacteristicallyconcurred in this acerbic dissent, but, the case was decided during the periodof deep personal tragedy for Simons when his wife had tragically and unex-pectedly died. Simons' probable distraction during this period would explainBellacosa's diatribe despite the joinder of Simons, whose capacity to restrainBellacosa already has been mentioned. This episode may well indicateSimons' important role as a moderating influence on the court's opinion writ-ing, which might have provided means for garnering support for particularoutcomes in particular cases.

Interestingly, Titone and Bellacosa were the most frequent lone voters.In occupying the opposite ends of the court's ideological preferences, thesejudges developed independent approaches to the court's most contentiouscases, much like how the most ideologically charged of the U.S. SupremeCourt justices have acted. Even though Titone may have been as dogmatic asBellacosa, perhaps even more so since he voted alone more often, Bellacosaexercised his prerogatives in a manner distinctive for its disagreeability. Theharshness of Bellacosa's opinions stands out in a court atmosphere imbuedwith consensus, civility, and moderation. The different backgrounds of thesejudges-Titone as a career jurist and Bellacosa as a neophyte-may explainthese different approaches to opinion writing.

221. 593 N.E.2d 1328 (N.Y. 1992).222. Id.

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B. Voting Blocs

Voting blocs can be identified in the overall plenary caseload2 23 and inthe criminal caseload2 2 4 during these terms. In the overall caseload, onlythree blocs seem to exist. At a level of moderate cohesiveness are blocs con-sisting of Wachtler and Bellacosa and of Alexander and Titone. Alexander,Titone, and Hancock comprised a bloc of low cohesiveness.2 2 5 In the crimi-nal caseload, more blocs emerge. Wachtler and Bellacosa exhibit a bloc ofhigh cohesiveness; of medium cohesion are blocs of Alexander and Titoneand of Alexander, Titone, and Hancock. Blocs of low cohesion consist ofWachtler 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 highcohesiveness and the opportunities for influence available to the chief judge.Simons' inclusion in blocs with these judges, even at low cohesiveness, fur-ther reveals his importance to the conservative wing of the court. Althoughthe blocs consisting of Kaye, Alexander, Titone, and Hancock might havesucceeded in swaying the court, these blocs exhibited lower cohesivenessthat allowed for the more variable voting patterns and alignments seen withthese judges. Moreover, the preferences of three of these four (excludingTitone) were less emphatic than those of Wachtler, Simons, and Bellacosa, sothat these judges, even in voting together, might well have moved to join theconservative judges. Again, the chief judge's influence on a court with judgesof common backgrounds and shared experiences, including deference tothose in higher office, should not be underestimated.

VI. CONCLUSION

Shortly before she became chief judge of the New York Court of Ap-peals, Judith Kaye recognized that state constitutional law cases divided thecourt like no others but she left for later consideration whether "this is aconsequence of the 'new' judicial federalism and a process of hammering outapproaches and methodologies to accommodate it, or the consequence ofother factors. '22 7 Perhaps recognizing the importance of Kaye's challenge,there has been no shortage of scholarly criticism of the manner in which statecourts have begun developing state consititutional jurisprudence,22 8 includingthat occurring in New York.22 9 This article provides a different perspective

223. See Appendix, Table Q for data on voting blocs evidenced on the overall caseload.224. See Appendix, Table R for data revealing voting blocs in criminal cases.225. See Appendix, Table Q.226. See Appendix, Table R.227. 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 constitutionaldecision-making).

229. See Cary & Falk, supra note 173, at 1279 (criticizing absence of discussion of method-ology 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 toexplain the dynamics of how an important state court approaches its judicialfederalism cases. In examining state constitutional decision-making by theNew York Court of Appeals and comparing it to the court's other decision-making contexts, this article has attempted a broader understanding of themotivations and factors affecting state constitutionalism.

The judges of the New York Court of Appeals seem to approach theircases in remarkably similar ways. The judges generally agree about the partywho should prevail, which translates into few cases decided with concur-rences and dissents; this markedly contrasts with the prevailing habit of theU.S. Supreme Court. This divergence from the nation's high court, despitesimilarities in the modes of selecting judges and of choosing cases for plenaryreview, suggests that other factors affect the court of appeals judges' votingpropensities. In recognizing that the court of appeals judges share back-grounds in a state judicial system that promotes civility, consensus, and defer-ence as the appropriate modi operandi, the influence of socialization on thejudges' voting behavior is apparent. The distinctive tone of Bellacosa's sepa-rate writings stands in contrast to the usually civil expressions by court ofappeals judges, and Bellacosa's unique career path to New York's high courtprovides some explanation for his different exercise of certain opinion writ-ing responsibilities.

In cases raising specific issues such as state constitutional questions, thecourt of appeals judges exhibit a greater propensity toward disagreement.The judges' utilization of conflicting approaches to resolve judicial federalismissues is a most obvious explanation for the court's uncharacteristic lack ofconsensus, but the effects of the factors motivating the court's more generaldecision-making are also evident. Bellacosa's strong dissent in Scott andKeta and the response it provoked reflect aspects of decision-making thatwere apparent in other cases. The dynamics of state constitutional decision-making by the judges of the New York Court of Appeals seem infected bysocialization; the prevailing patterns of conduct and the expected modes ofexpression reflect the effects of socialization. Although the mix of the deci-sion-making factors may be different in these judicial federalism cases, theirpresence is reflected in the decision-making propensities and thus must beaccommodated when considering how to address state constitutionaljurisprudence.

And, of course, the need to develop firmly grounded jurisprudential ra-tionales for state constitutional decision-making remains. Growth and devel-opment of state constitutional adjudication must have some secure doctrinalbases. 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 stateconstitutionalism is to reach responsible and meaningful adulthood.

1444 [Vol. 68


1995] NEW YORK COURT OF APPEALS

TABLE AVOTING PREFERENCES-CRIMINAL CASES

Outcome 87-88 88-89 89-90 90-91 91-92

Court of AppealsProsecution

Defendant

Total

WachtlerProsecution

Defendant

SimonsProsecution

Defendant

KayeProsecution

Defendant

AlexanderProsecution

Defendant

TitoneProsecution

Defendant

Hancock

Prosecution

Defendant

BellacosaProsecution

Defendant

8972%3528%

124

9173%3327%

8871%3629%

8569%3931%

8871%3629%

8468%4032%

8569%3931%

9173%3327%

7063%4137%

111

7265%3935%

7366%3834%

6862%4238%

7568%3632%

6156%4844%

6760%4440%

7265%3935%

NOTE: Not all judges participated in all cases and percentages are of total for judge.

1445

7967%3933%

118

8068%3832%

8068%3832%

7059%4841%

6759%4741%

7059%4841%

7463%4437%

8370%3530%

4959%3441%83

5161%3239%

5263%3137%

4655%3745%

4655%3745%

4352%4048%

4959%3441%

5263%3137%

5850%5750%

115

6052%5548%

5951%5649%

5447%6153%

5249%5551%

5346%6254%

5447%6053%

6456%5144%


TEMPLE LAW REVIEW

TABLE BVOTING PREFERENCES-SPECIFIC SUBJECT CATEGORIES

Outcome CT W S K A T H B

Civil Rights &Liberties

Conservative

Liberal

JudicialFederalism

Federal

State

Cuomo AgendaAnti-Cuomo

Cuomo

39 38 40 29 27 27 36 3953% 56% 55% 41% 38% 38% 50% 55%35 30 33 41 45 44 36 3247% 44% 45% 59% 62% 62% 50% 45%

18 22 23 9 12 6 14 2260% 73% 77% 31% 44% 23% 47% 73%12 8 7 20 15 20 16 840% 27% 23% 69% 56% 77% 53% 27%

13 9 14 12 19 20 16 837% 29% 40% 36% 58% 59% 52% 24%22 22 21 21 14 14 15 2662% 71% 60% 64% 42% 41% 48% 76%


1446 [Vol. 68


1995] NEW YORK COURT OF APPEALS 1447

TABLE C

CONCURRENCES AND DISSENTS PER CATEGORY

Total Cases Cases w/Concur Cases w/ Cases w/Category Cases All Agree and/or Dissent Concur Dissent

87-88Civil 206 176 30 4 27

85% 15% 2% 13%Criminal 124 112 12 3 9

90% 10% 2% 7%Total 330 288 42 7 36

87% 13% 2% 11%88-89

Civil 180 147 33 6 3182% 18% 3% 17%

Criminal 111 80 31 11 2372% 28% 10% 21%

Total 291 227 64 17 5478% 22% 6% 19%

89-90Civil 172 144 28 10 22

84% 16% 6% 13%Criminal 118 88 30 8 24

75% 25% 7% 20%Total 290 232 58 18 46

80% 20% 6% 16%90-91

Civil 170 142 28 2 2684% 16% 1% 15%

Criminal 83 65 18 4 1678% 22% 5% 19%

Total 253 207 46 6 4282% 18% 2% 17%

91-92Civil 158 135 23 1 22

85% 15% 0% 14%Criminal 115 89 26 8 20

77% 23% 7% 17%Total 273 224 49 9 42

82% 18% 3% 15%

Civil 74 39 35 8 27Rights 53% 47% 11% 36%Judicial 30 8 22 6 19Federalism 27% 73% 20% 63%Cuomo 35 16 19 3 18Agenda 46% 54% 9% 51%

NOTES: Percentages are of total cases.Because some cases had both concurrences and dissents, the sum ofcolumns "Cases w/ Concur" and "Cases w/ Dissent" may not totalcolumn "Cases w/ Concur and/or Dissent."


TEMPLE LAW REVIEW

TABLE DVOTING PATTERNS-OVERALL CASES

Vote W S K A T H B

87-88Majority 314 319 319 318 294 310 310

97% 97% 97% 97% 95% 95% 95%Concur 1 1 2 0 1 1 5

1% 0% 1% 0% 1% 1% 2%Dissent 8 9 7 11 13 14 11

2% 3% 2% 3% 4% 4% 3%88-89

Majority 270 274 265 265 250 263 26096% 95% 95% 93% 90% 93% 91%

Concur 3 1 1 4 5 6 61% 0% 0% 1% 2% 2% 2%

Dissent 9 13 14 17 23 15 193% 5% 5% 6% 8% 5% 7%

89-90Majority 271 278 269 255 260 267 269

96% 96% 93% 94% 91% 94% 95%Concur 3 4 4 3 7 6 4

1% 1% 2% 1% 2% 2% 1%Dissent 7 8 15 14 19 12 10

2% 3% 5% 5% 7% 4% 4%90-91

Majority 240 237 236 241 216 237 23597% 94% 95% 95% 90% 94% 96%

Concur 0 3 0 0 3 2 30% 2% 0% 0% 2% 1% 1%

Dissent 7 11 12 12 20 13 83% 4% 5% 5% 8% 5% 3%

91-92Majority 258 249 258 164 242 251 257

97% 96% 96% 91% 90% 94% 95%Concur 2 2 2 2 4 3 2

1% 1% 0% 1% 2% 1% 1%Dissent 6 9 10 15 22 14 11

2% 3% 4% 8% 8% 5% 4%


1448 [Vol. 68



TABLE EVOTING PATTERNS-CIVIL CASES

Vote W S K A T H B

87-88Majority 192 196 199 198 182 191 190

96% 96% 98% 96% 96% 95% 94%Concur 1 1 2 0 0 0 3

0% 0% 1% 0% 0% 0% 1%Dissent 6 8 3 8 8 10 9

3% 4% 1% 4% 4% % 4%88-89

Majority 163 169 161 167 161 163 16395% 96% 94% 95% 94% 94% 92%

Concur 1 0 1 1 1 2 31% 0% 0% 0% 0% 1% 2%

Dissent 7 8 10 8 10 8 114% 4% 6% 5% 6% 5% 6%

89-90Majority 156 165 162 163 158 156 159

96% 96% 95% 96% 94% 93% 96%Concur 1 2 2 0 2 4 2

0% 1% 1% 0% 1% 3% 1%Dissent 6 5 6 6 8 7 4

4% 3% 4% 4% 5% 4% 2%90-91

Majority 159 159 156 163 144 157 15797% 95% 95% 96% 92% 93% 96%

Concur 0 1 0 0 1 1 10% 0% 0% 0% 1% 1% 1%

Dissent 5 8 9 7 12 11 53% 5% 5% 4% 7% 6% 3%

91-92Majority 147 147 148 103 141 143 150

97% 97% 95% 91% 92% 93% 97%Concur 0 0 1 1 0 0 0

0% 0% 1% 1% 0% 0% 0%Dissent 4 4 6 10 13 11 5

3% 3% 4% 9% 8% 7% 3%


1995] 1449


TEMPLE LAW REVIEW

TABLE FVOTING PATrERNS-CRIMINAL CASES

S K A T H BVote

87-88Majority

Concur

Dissent

88-89Majority

Concur

Dissent

89-90Majority

Concur

Dissent

90-91Majority

Concur

Dissent

91-92Majority

Concur

Dissent


122 123 120 120 112 119 12098% 99% 97% 98% 95% 96% 97%0 0 0 0 1 1 20% 0% 0% 0% 1% 1% 2%2 1 4 3 5 4 22% 1% 3% 2% 4% 3% 2%

107 105 104 98 89 100 9796% 95% 96% 89% 84% 90% 90%

2 1 0 3 4 4 32% 1% 0% 3% 4% 4% 3%2 5 4 9 13 7 82% 4% 4% 8% 12% 6% 7%

115 113 107 92 102 111 11097% 96% 91% 90% 87% 94% 93%2 2 2 3 5 2 22% 2% 2% 2% 4% 2% 2%1 3 9 8 11 5 61% 2% 7% 8% 9% 4% 5%

81 78 80 78 72 80 7898% 94% 96% 94% 88% 96% 94%

0 2 0 0 2 1 20% 2% 0% 0% 2% 1% 3%2 3 3 5 8 2 32% 4% 4% 6% 10% 3% 4%

111 102 110 61 101 108 10797% 94% 96% 91% 89% 95% 93%2 2 1 1 4 3 22% 2% 1% 2% 4% 3% 2%2 5 4 5 9 3 62% 4% 4% 7% 7% 3% 5%

A

1450 [Vol. 68


1995] 1451NEW YORK COURT OF APPEALS

TABLE GVOTING PATTERNS-SPECIFIC SUBJECT CATEGORIES

Vote W S K A T H B

Civil Rights& Liberties

Majority 60 65 59 62 56 63 6088% 89% 84% 86% 79% 88% 85%

Concur 1 3 3 1 2 2 41% 4% 4% 1% 2% 2% 6%

Dissent 7 5 8 9 13 7 711% 7% 12% 13% 19% 10% 11%

JudicialFederalism

Majority 26 25 19 23 15 23 2087% 83% 66% 82% 58% 80% 67%

Concur 1 3 5 3 5 1 53% 10% 17% 11% 19% 3% 17%

Dissent 3 2 5 2 6 5 510% 7% 17% 7% 23% 17% 17%

CuomoAgenda

Majority 30 32 31 27 23 23 2897% 91% 94% 82% 68% 74% 82%

Concur 0 0 1 0 0 1 20% 0% 3% 0% 0% 3% 6%

Dissent 1 3 1 6 11 7 43% 9% 3% 18% 32% 23% 12%


TABLE HVOTING PAIRS-1987-1988

OVERALL CASES WITH CONCURRENCE AND/OR DISSENT

TotalVotes W S K A T H B

W 41 (2%) 63% 58% 59% 51% 51% 73%S 42 (5%) 63% 57% 40% 58% 48%K 41 (2%) 71% 56% 59% 51%A 42 (2%) 58% 60% 48%T 40 (13%) 45% 45%H 40 (3%) 28%B 42 (19%)

NOTES: Percentage is proportion of cases in which pair of judges participatedthat judges joined in same opinion.Percentage in parenthesis is proportion of cases in which judgeparticipated that judge was not joined by any other judge.


1452 TEMPLE LAW REVIEW [Vol. 68

TABLE IVOTING PAIRS-1988-1989



W 63 (0%) 73% 67% 49% 37% 52% 71%S 63 (2%) 58% 65% 38% 68% 46%K 61 (0%) 52% 50% 59% 54%A 64 (6%) 52% 53% 38%T 61 (15%) 49% 23%H 64 (5%) 33%B 64 (17%)


TABLE JVOTING PAIRS-1989-1990



W 55 (4%) 78% 62% 49% 40% 64% 71%S 58 (5%) 56% 56% 36% 68% 67%K 57 (4%) 59% 47% 53% 49%A 54 (7%) 50% 50% 47%T 58 (21%) 46% 32%H 56 (5%) 44%B 57 (16%)




TABLE KVOTING PAIRS-1990-1991



W 45 (0%) 62% 70% 67% 36% 62% 75%S 46 (2%) 49% 57% 38% 59% 56%K 45 (4%) 64% 36% 53% 57%A 46 (0%) 51% 52% 53%T 45 (18%) 47% 34%H 46 (2%) 49%B 45 (7%)


TABLE L

VOTING PAIRS-1991-1992OVERALL CASES WITH CONCURRENCES AND/OR DISSENT


W 49 (0%) 73% 66% 36% 45% 54% 78%S 49 (2%) 60% 44% 37% 52% 67%K 47 (6%) 37% 40% 50% 51%A 36 (6%) 56% 57% 33%T 49 (12%) 46% 43%H 48 (10%) 42%B 49 (6%)


1995] 1453


1454 TEMPLE LAW REVIEW [Vol. 68

TABLE MVOTING PAIRS-FIVE TERM TOTAL



W 253 (1%) 71% 64% 52% 41% 57% 73%S 258 (3%) 57% 57% 38% 62% 57%K 251 (3%) 58% 46% 55% 52%A 242 (5%) 53% 54% 44%T 253 (16%) 47% 34%H 254 (5%) 39%B 257 (13%)


TABLE NVOTING PAIRS-CIVIL RIGHTS AND LIBERTIES CASES

CASES WITH CONCURRENCE AND/OR DISSENT


W 34 (3%) 64% 63% 47% 36% 66% 74%S 34 (9%) 47% 50% 36% 70% 50%K 33 (9%) 58% 44% 52% 45%A 33 (3%) 53% 55% 45%T 34 (18%) 41% 41%H 33 (9%) 48%B 35 (14%)



1995] NEW YORK COURT OF APPEALS 1455

TABLE 0VOTING PAIRS-JUDICIAL FEDERALISM CASES



W 22 (0%) 86% 45% 55% 26% 55% 68%S 22 (5%) 41% 50% 21% 55% 68%K 22 (14%) 80% 47% 55% 23%A 20 (5%) 59% 50% 30%T 19 (21%) 53% 11%H 22 (5%) 27%B 22 (23%)


TABLE P

VOTING PAIRS-CUOMO AGENDA CASES



W 16 (0%) 88% 75% 50% 27% 60% 65%S 19 (5%) 76% 59% 22% 56% 61%K 17 (0%) 53% 31% 50% 63%A 17 (0%) 63% 63% 25%T 18 (28%) 53% 6%H 18 (0%) 35%B 18 (22%)



TEMPLE LAW REVIEW

TABLE QVOTING BLOCS-OVERALL CASES WITH CONCURRENCE AND/OR DISSENT

TotalVotes T A H K S W B

Titone 108 (40) 37 33 21 8 6 11Alexander 78 37 (11) 24 20 15 4 7Hancock 116 33 24 (13) 19 21 9 1Kaye 67 21 20 19 (8) 9 11 10Simons 61 8 15 21 9 (9) 14 11Wachtler 48 6 4 9 11 14 (3) 26Bellacosa 79 11 7 1 10 11 26 (34)

Indices of Cohesion

Wachtler, BellacosaAlexander, TitoneAlexander, Titone, Hancock

.41 (Medium)

.40 (Medium)

.31 (Low)

TABLE RVOTING BLOCS-CRIMINAL CASES WITH CONCURRENCE AND/OR DISSENT

TotalVotes T K H A S B W

Titone 62 (20) 14 17 20 4 4 2Kaye 25 14 (5) 5 13 3 1 0Hancock 32 17 5 (4) 10 6 0 0Alexander 37 20 13 10 (3) 7 2 1Simons 24 3 3 6 7 (3) 7 6Bellacosa 36 4 1 0 2 7 (15) 14Wachtler 15 2 0 0 1 6 14 (0)

Indices of Cohesion

Wachtler, BellacosaKaye, AlexanderAlexander, TitoneWachtler, Simons, BellacosaTitone, HancockAlexander, Titone, HancockKaye, Alexander, Titone, HancockWachtler, SimonsKaye, Titone

.54 (High).42 (Medium).40 (Medium).36 (Low).36 (Low).36 (Low).33 (Low).31 (Low).31 (Low)

1456 [Vol. 68


Documents

The dynamics of state constitutional decision-making ...332764/... · the dynamics of state constitutional decision-making: judicial behavior at ... 49 or. l. rev. 133, ... james