New York Law Journal
by John Caher
ALBANY – With a swipe at scholars who focus only on divided opinions in attempting to pigeonhole judicial ideology, Court of Appeals Judge Richard C. Wesley Monday told an audience at Albany Law School that the common academic model of appellate analysis is essentially useless and factually baseless.
“Some insist on evaluating the Court’s work by focusing only on cases in which there is a dissent,” Judge Wesley said. “This approach, in my opinion, suffers from a serious diagnostic flaw. It presupposes that unanimous opinions have some monolithic quality to them — that the Court was of one mind throughout the deliberative process without the judges ever seriously questioning the legal reasoning at the core of the decision.”
Judge Wesley delivered his remarks on the home court of Professor Vincent M. Bonventre, whose research on the Court of Appeals has been criticized by some closest to the Court.
For several years, Professor Bonventre, a former clerk at the Court, has conducted periodic studies in which he examines divided opinions to discern ideological patterns of individual judges while looking primarily to prevailing decisions to track the panel’s overall trajectory. The general thrust of Professor Bonventre’s recent studies — that the Court has grown less sympathetic to individual liberties and more accommodating to the government and that the voting patterns of some judges has shifted over time — mirrors anecdotal evidence offered by veteran practitioners.
Without mentioning Professor Bonventre by name, Judge Wesley challenged the methodological premise behind much of the professor’s scholarship.
“[T]hese observers focus on the ‘controversial’ decisions where dissents crop up to take the Court’s intellectual and philosophical temperature,” Judge Wesley said. “I would suggest that the better measure of our work is in our unanimous expressions of law. In these decisions, the Court speaks as a chorus. The decision represents the common ground of diverse minds. What better expression of the Court’s view could there be?”
Professor Bonventre, and several other scholars who write about various courts, including the U.S. Supreme Court, maintains that dissents usually provide the only window into an individual judge’s views. Many scholars contend that a unanimous opinion is often the result of a compromise and that it reveals little if anything of any particular jurist’s ideological leanings.
The problem some critics have cited in applying that study methodology to the judges of the Court of Appeals is that the vast majority of the New York panel’s rulings are unanimous, so the sample of dissents is relatively small. Judge Wesley suggested that any analysis of the Court based on dissents is simplistic. He said differences of opinion — whether they result in a written dissent or not — “have a significant moderating effect in the sweep of a decision” and ensure that the “Court goes no further than it needs in resolving the matter.”
Judge Wesley’s remarks on dissents and ideological analysis constituted only a small part his speech at the first annual Hugh R. Jones Memorial Lecture, an event co-sponsored by Albany Law School and the Fund for Modern Courts. Mostly, Judge Wesley discussed the extraordinary jurisprudence of Judge Jones — a man who never wore robes until his election to the Court of Appeals in 1972, but continues to influence the Court with his precedents and his approach.
Judge Jones, who died a year ago, was the “master of the internal dissent,” Judge Wesley said, and his “Cogitations on Appellate Decision-Making” (34 The Rec. of the Association of the Bar of the City of New York 543, 1979) remains a benchmark.
Although Judge Wesley never served on the Court with Judge Jones, Chief Judge Judith S. Kaye did and has often told a story of an early encounter with the jurist from Utica. Chief Judge Kaye has recounted how Judge Jones once wrote a dissent to one of her opinions before she had even penned the majority view. Judge Jones’ aim was to give her a chance to address his concerns and bring him into the majority.
Chief Judge Kaye, who introduced Judge Wesley yesterday, spoke fondly of her departed colleague.
“We had 15 forever-memorable months together as colleagues on the Court of Appeals,” the Chief Judge said. “And we had 15 years, two months and three forever-memorable days as steadfast friends. Hugh Jones was unmatched as a practitioner and teacher in the art of appellate judging, and he was unmatched in the art of living a good, kind, loving, meaningful, productive life.”
Other judges said Judge Jones frequently wrote internally-circulated dissents that he had no intention of publishing.
Behind a Dissent
“For Jones, a potential dissent was not a matter of personal pique- it was an opportunity for clarity and unanimity in expressing the law,” Judge Wesley said. “The process continues to thrive today. The dialogue of the conference tests the strengths and weaknesses of a proposed resolution.”
Judge Wesley said that while “no one — no one — ever comes to [the Court of Appeals] without acquiring a strong sense of self assurance,” Judge Jones admonished that dissents should be written only with a specific, legitimate purpose, and not to bolster or salvage personal pride.
“Of course, there will be times when matters of high principle are at stake and deeply held differences need to be aired — to fail to do so diminishes the competing views,” Judge Wesley said. “A litigant, and those who share that view, sometimes needs to know that the Court has considered their position and that it was persuasive to some.”
Judge Wesley also praised Judge Jones’s willingness to employ common law, tempered with considerable restraint, to enable the legal landscape to adjust to societal shifts.
“For Jones in his pursuit of justice, the genius of the common law was not only in its logic — its careful attention to existing legal principles — but also in its dynamic and irresistible persuasiveness that a rule could ultimately run its course and be replaced by another,” Judge Wesley said. “But the new rule has roots — its development comes not only from the need to keep the law current to meet the changing demands of an organized society but also from the theme and variations of prior legal principles and their exceptions that presaged the new rule’s birth.”
Among those in attendance were: Judge Jones’s children and grandchildren; Court of Appeals Judges Carmen Beauchamp Ciparick, Albert M. Rosenblatt, Howard A. Levine and Victoria A. Graffeo; Presiding Justice Anthony V. Cardona of the Appellate Division, Third Department; and New York State Bar Association President Steven C. Krane of Proskauer Rose LLP in Manhattan. Judge Jones had been president of the State Bar prior to his election to the Court of Appeals.