Public Law at the New York Court of Appeals: An Update on Developments, 2000

I. INTRODUCTION Many, perhaps most, New Yorkers are fairly unaware of the Court of Appeals and what it really does. Yet, the court's decisions have a profound impact on our lives.(1) The amount of power and influence that the Court of Appeals has had on the most fundamental values of our community has always been substantial. But it is even greater now, especially given the Supreme Court's emphasis on principles of federalism the area of civil rights and civil liberties over the last few decades.(2) When one thinks about the kind of issues that the Court of Appeals decides, it is astounding that more New Yorkers are not aware of this institution, the kind of work it does and the impact that it has on our lives. Virtually every facet of our lives ends up sooner or later at the Court of Appeals. More than that, the Court of Appeals almost always has the last word. First, much of what the court does is purely state law--in most cases there are no federal questions raised.(3) In those cases, the Supreme Court of the United States does not even have jurisdiction to review the decisions of the Court of Appeals.(4) Second, even if federal questions could be raised, the Court of Appeals, providing for the enforcement of rights and liberties, has historically taken an approach that is much more generous than that of the Supreme Court of the United States with regard to violations of constitutional rights and liberties.(5) The New York Court of Appeals has often been cited one of the finest courts the country.(6) With Benjamin Cardozo's arrival 1914,(7) the Court of Appeals widely viewed as the preeminent state court the country.(8) Among other things, the court built a tradition of protecting rights and liberties, relying on New York's Constitution regardless of the protections provided under the Federal Constitution.(9) In fact, the court, under the leadership of Chief Judges Desmond, Fuld, Breitel, and Cooke,(10) was the national vanguard, protecting individual rights during both the Warren Era and the post-Warren retrenchment era at the Supreme Court.(11) However, beginning the late 1980s, during the latter years of the tenure of Chief Judge Wachtler, the court entered a period of its own retrenchment, during which the court the course on which it had been proceeding rather consistently for the previous quarter century.(12) The court even backpedaled in the very areas which it gained national prominence.(13) By 1990 and 1991, the court's retreat from prior levels of protection firmly entrenched.(14) Within a matter of a few years, the court went from being one of the most liberal tribunals the country to being an unmistakably conservative leaning one. (15) When Chief Judge Wachtler resigned from the court,(16) the direction of the court again changed.(17) During the first few years of Chief Judge Kaye's tenure, her court began to move toward greater protection of civil rights and civil liberties.(18) The court held favor of individuals, opposed to government, nearly twice often it had during the period prior to Chief Judge Wachtler's resignation.(19) Many court watchers took this a sign that the court, under Chief Judge Kaye, would be bold and innovative protecting civil rights and liberties.(20) However, five years ago, when Governor Pataki first took office, the Court of Appeals became a subject of intense criticism at the highest levels of state government and the popular media.(21) The court accused of virtually everything, from being the most liberal tribunal the country to being an ideological dog and pony show.(22) Soon, it appeared that the Kaye Court reversed track and began to resemble the last few years of the Wachtler Court.(23) Rulings favor of individuals, opposed to government, dropped to nearly the rate of the Wachtler Court.(24) The shift particularly dramatic the area of criminal law, the subject of the courtbashing. …