The Influence of Judicial Deference on the New York Court of Appeals

By Patricia T. Whelan

Patricia T. Whelan is a third-year student at Albany Law School. Prior to attending law school, she earned her bachelor’s degree from Penn State.

At Albany Law, Patricia is an Associate Editor of the Albany Law Review, a Board Member of the Elder and Disability Law Pro Bono Society, and the 3L Representative of the Student Bar Association. As a second-year student, she was the Chief Justice of the Phi Alpha Delta Law Fraternity, where she received the Outstanding Law School Chapter Justice Award.

Patricia has interned for the Third Judicial District, Federal Public Defender’s Office, and served as the Law Student Liaison for the ABA Section of State and Local Government Law. She also enjoys competing in various Moot Court Competitions and was a finalist in the 2021 Donna Jo Morse Client Counseling Competition.

In addition to all of that, Patricia is the Editor-in-Chief of the Center for Judicial Process for the 2022-23 academic year, and she is currently working as a law clerk at Pierro, Connor & Strauss.

The legal decision-making process is deeply rooted in the judicial branch of the United States Government.  It is an art that is foundational to our justice system.  The process by which judges interpret and apply the law to arrive at legal conclusions is often perplexing and intriguing.  As such, the process of how judges make decisions is frequently discussed and studied amongst many forums.  Numerous philosophies and principles have been constructed and developed regarding the judicial decision-making process.  One significant aspect of the judicial decision-making process is the legal power of judicial review which grants courts the broad power to determine the constitutionality of government actions. 

Within the principle of judicial review, lies the philosophy of deference.  Judicial deference is often used by judges in their decision-making process.  It stands for the idea that courts may yield or defer its judgment to that of another legitimate branch of authority.  Under this standard of review, judges recognize that they may be required to uphold a certain interpretation of law, even if they do not believe that it is correct, given that the Constitution does not prohibit the legislature’s determination and there is a reasonable basis for it. 

The purpose of this paper is to consider the decisions of three different New York Court of Appeals judges who all seemingly employ a deferential attitude in reaching a legal conclusion.  First, this paper considers the majority opinion of Judge Charles D. Breitel in Byrn v. New York City Health & Hospitals Corp. Next, it looks at People v. Davis and the majority opinion written by Judge Lawrence H. Cooke.  Lastly, it discusses Judge Eugene F. Pigott, Jr.’s majority opinion in Shipley v. City of New York.  This paper concludes by drawing generalizations about the judges’ and their opinions based on the deferential standard of judicial review. 

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To read the paper, open HERE.

People v. Tiger, “[M]ore than it should and less than it seems”

The Court of Appeals’ Over-Emphasis on Finality and Conservation of Judicial Resources

By Olivia Harvey

Olivia Harvey is a 2022 graduate of Albany Law School. During law school, she served as the Editor-in-Chief of the Center for Judicial Process, as well as a teaching assistant and research assistant for Professor Vincent Bonventre.

Olivia also served as an intern at the law school’s Immigration Law Clinic, where she provided direct representation to an asylum-seeker, and as an intern at the Schenectady County District Attorney’s Office, where she worked in the appeals unit.

Olivia is currently an Assistant District Attorney at the Manhattan District Attorney’s Office.

In its 2018 decision in People v. Tiger, the New York Court of Appeals held that, for those convicted of a crime by guilty plea, there exists no right to bring a motion for post-conviction relief challenging the conviction on the basis of actual innocence, unless the claim involves newly discovered DNA evidence.

In dissent, Judge Rowan Wilson castigated the majority opinion for doing “more than it should and less than it seems.” Wilson criticized the majority for characterizing the issue in the case more broadly than necessary, while simultaneously failing to answer the question of whether the disparity its holding created between those convicted by plea and those convicted by trial verdict rendered either the specific provision at issue, or the statutory scheme as a whole, unconstitutional.

This paper seeks to demonstrate that the majority opinion does in fact do “more than it should and less than it seems,” in more than one way. Throughout the majority opinion, the Court focuses more than it should on how preventing defendants convicted by plea from bringing a claim of actual innocence serves society’s interest in the finality of criminal cases and judicial economy. At the same time, the societal interest in finality is far less important than the majority makes it seem; the fact that other states that have successfully permitted those convicted by plea to bring a claim of actual innocence and the structure of the statutory scheme illustrate this point.

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To read the paper, open HERE.

Judge Eugene M. Fahey and Consequentialism

By Claire Stratton

Claire Stratton is 3L at Albany Law School. She is a graduate of the University of Texas at Austin.

This year, Claire is serving as the Executive President of the Student Bar Association and Editor-in-Chief of the Journal of Science and Technology. For the past two years, Claire has been a Student Ambassador for the school. Claire has served on SBA each year she has been at Albany Law, first as a 1L representative and then as 2L Class President.

Additionally, Claire has served on many Executive Boards around campus, including, Phi Alpha Delta, the Business Law Society, the Gaelic Law Society, and the Albany Law Literary Circle.

Claire has been a law clerk for the Towne Law Firm for about a year now and will be graduating this May!

Eugene M. Fahey, who recently retired from New York's highest court, the Court of Appeals, can be described as a true New Yorker with a strong sense of devotion to the public. Fahey authored many notable opinions, addressing a wide range of topics, including same-sex marriage and gun violence.

Judge Fahey embraced consequentialism, a method of judicial interpretation, throughout his career on the bench. This is apparent in some of his most well-known opinions.

Consequentialism is a method that factors in the effects and ramifications of a decision when determining the best resolution of an issue. This paper analyzes some of Judge Fahey’s most significant opinions and his use of consequentialism in them.

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To read the paper, open HERE.

Chief Judge Lawrence H. Cooke’s Legacy

His Lasting Impact on the New York Court of Appeals

By Tyler J. Wilson

Tyler Wilson is a 2021 graduate of Albany Law School. During law school, he served as Managing Editor of Business and Production for the Albany Government Law Review.

Prior to attending law school, he received a Bachelor’s degree from SUNY Buffalo in legal studies and was a member of the Men’s Baseball Team. Tyler is currently an associate (pending admission) in Buffalo for the law firm, Gibson, McAskill & Crosby, LLP.

The New York Court of Appeals has a rich and storied history. One reason for this is the many excellent judges who have sat on the bench. One judge who has a significant role in shaping the court was Chief Judge Lawrence H. Cooke. He did so by authoring opinions on important issues which promoted justice and were based on solid legal reasoning.

Chief Judge Cooke would go on to have a lasting impact on the court. His small-town roots and family values shaped his judicial philosophy. Chief Judge Cooke truly believed in fairness and justice for all, and he showed this in his majority opinions and dissents.

Cooke was also a vigorous advocate for independent New York State Constitution Law, and he was a leader in helping to improve the legal profession in the state of New York. It is important to look back on Chief Judge Cooke’s legacy and the history of the Court to understand how it got to where it is today and where it may be headed.

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To read the paper, open HERE.

Chief Justice Roberts: Judicial Restraint and Partisan Gerrymandering

By Anthony C. Jenouri

Anthony C. Jenouri is a third-year law student at Albany Law School. Currently, he is a legal intern at both the Justice Center and Government Law Center. He also served as an intern at the law school’s Immigration Law Clinic, where he drafted habeas corpus petitions to help clients challenge their immigration detention. He was also a semi-finalist in the 2022 Donna Jo Morse Negotiations Competition.

Before law school, Anthony earned his bachelor’s degree from Binghamton University, where he majored in Philosophy, Politics, and Law. He also previously interned for Assembly Member Michael DenDekker at the New York State Assembly, where he served as clerk for the Consumer Affairs and Protection Committee. Upon graduation, Anthony hopes to pursue a career as a legislative counsel.

Chief Justice John Roberts has made it his mission to preserve the Supreme Court’s legitimacy, and he does so by avoiding the hint of partisanship whenever possible. This is partly why, when confronted with an issue as polarizing as partisan gerrymandering, the Chief Justice decided to punt on the issue. Specifically, he held in Rucho v. Common Cause that federal courts may not hear partisan gerrymandering cases because they present nonjusticiable political questions. Instead, such cases must be resolved by the political branches of government, namely the legislative and executive branches.

Critics have been quick to point out how partisan gerrymandering is antithetical to democratic principles. After all, it promotes an electoral system where the legislators are choosing their voters, and not the other way around. And it may seem disingenuous to suggest, as Roberts does, to defer to the legislators, since they are precisely the ones who benefit from keeping gerrymandering legal. While the Chief Justice appears to sympathize with his critics’ concerns, they are not enough to overcome his primary concern: preserving the Supreme Court’s legitimacy.  Allowing courts to intervene in the redistricting process, especially without a manageable legal standard, risks plunging the courts into the political thicket, thus damaging the judiciary’s image as the nonpartisan branch of government.

This paper examines the Chief Justice’s opinion in Rucho to understand how his concern for preserving the Court’s legitimacy informs his judicial decision-making. It also questions whether his approach to judicial restraint is prudent or whether it actually emboldens the extreme polarization he seeks to contain.

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To read the paper, open HERE.

“Suppose This Were a Normal Law”—S.B. 8 Oral Arguments in the Pre-Post-Roe World

By Alice Broussard

Alice Broussard is a member of the class of 2023 at Albany Law School. She previously worked in publishing and education, and she graduated cum laude with a bachelor’s degree in English from Rice University.

At Albany Law, Alice is a member of the Albany Law Review and will serve as Executive Managing Editor of Vol. 86. She has been a Sponsler Fellow in Civil Procedure and is currently a Teaching Assistant in Lawyering. She interned with Judge Lawrence E. Kahn in the Northern District of New York during the summer of 2021 and is currently an intern at Empire Justice Center.

In May 2021, the Supreme Court agreed to consider a Mississippi law seeking to ban abortions after fifteen weeks. The state’s initial briefs, filed while Justice Ruth Bader Ginsburg was still alive, claimed nonsensically that “the questions presented in this petition do not require the court to overturn Roe or Casey.” In July, with Justice Amy Coney Barrett installed as part of the Court’s new 6–3 conservative majority, Mississippi filed a new brief: “Roe and Casey are egregiously wrong.” The case was argued in December, and a decision is expected this year.

 

But Texas, with the Court’s help, beat Mississippi to the punch. On September 1, 2021, a Texas law known as S.B. 8 went into effect. The law bans abortions after just six weeks or, ostensibly, when a fetal heartbeat is detected by ultrasound. Unlike previous heartbeat bills, S.B. 8 was written to evade judicial review by delegating enforcement to private citizens. This paper examines the S.B. 8 oral arguments in Whole Woman’s Health v. Jackson and United States v. Texas through the lens of judicial advocacy and, from the vantage of December 2021, briefly looks ahead to the consequences of the Court’s decisions.

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To read the paper, open HERE.

Third Parties in the Judicial Nomination Process: the Federalist Society and the Liberal Response

By Nicholas A. Alfano

Nicholas Alfano is a current 2L at Albany Law School. He graduated from Seton Hall University, where he majored in Political Science and Philosophy and minored in Economics. Nicholas is a founding member of the Catholic Law Students Association where he currently serves as treasurer. He has previously interned with the NYS Division of Consumer Protection’s Utility Intervention Unit.

In recent years, one of the most contentious issues in American politics has been judicial appointments. In the 2016 and 2020 presidential elections candidates, Donald Trump and Joe Biden promised who they would appoint to the judiciary. However, while Biden promised appointments of various professional and demographic backgrounds, Trump declared his judicial appointments, saying he would choose them by an outside group: the Federalist Society. The Federalist Society is an organization of libertarian and conservative lawyers that promote originalist and textualist interpretations of the Constitution and the law.

 

The Federalist Society is one of the most influential groups within the Republican Party, both allied in promoting legal conservatism. All three of Trump’s Supreme Court appointments were Federalists. The Federalist Society facilitates a robust network of conservative lawyers and legal activists for the Republicans to draw from for various positions, be it jobs within the legislature and executive or the judiciary (and many times both, with Brett Kavanaugh as the premier example). The Federalist influence on the court has had some noticeable effects. The tribunal took a rightward turn and became younger and less experienced but more connected with other legal conservatives.

 

Conversely, there exists no direct analog for Democrats and liberal lawyers, though not for lack of trying. Led by the American Constitution Society, liberals have been attempting to recreate the network the Federalists have built. Still, these efforts have not managed to rival the Federalists in reach and prestige so far, and, in the same token, this is due to several factors, including the lack of an attractive legal doctrine alternative to originalism and textualism. As such, liberals have advocated for other means to rebalance the courts, including court-packing and quick appointment of judges.

To read the paper, open HERE.

Brown v. Board of Education: How the Decision-Making Process Influenced the Ruling

By Taylor Farrier 

Taylor Farrier, a current third-year student at Albany Law School, grew up in Queensbury, NY. Prior to attending Albany Law, she earned her bachelor’s degree from the University at Albany in 2019, where she majored in Political Science and minored in Criminal Justice.

At Albany Law, Taylor is a member of the Phi Alpha Delta Law Fraternity and the Business Law Society. She interned with the Warren County District Attorney’s Office in the summer of 2021 and for the Honorable Kathleen B. Hogan for the New York Court of Claims in the summer of 2020. She wrote this paper for Professor Bonventre's Supreme Court Seminar.

There is no denying that Brown v. Board of Education is one of the most monumental cases in all of American judicial history. Overturning Plessy v. Ferguson was a long and hard-fought battle during the late nineteenth and early twentieth centuries. Following the Civil War, the equality that black individuals in the United States had long fought for didn’t arrive as seamlessly as many may have hoped. Even following the ratification of the Thirteenth, Fourteenth, and Fifteenth Amendments, the country still had a long way to go in the process of constitutional equality between blacks and whites. 

While Brown v. Board of Education was undoubtedly a significant case, the unanimous decision of the justices doesn’t tell the whole story. Looking into the judicial philosophies of the justices on the Court during Brown, we get a deeper insight into how they were able to come to a unanimous decision. They did this despite differing ideologies and views, and how the judicial decision-making process influenced the outcome of the case. 

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To read the paper, open HERE.

Justice Thomas’s Critique of Qualified Immunity

An Originalist's Perspective on the Judicial Doctrine

By Patricia Whelan

Patricia Whelan is a current 2L at Albany Law School. Prior to attending Albany Law, she graduated from the Pennsylvania State University in 2020, where she majored in Criminology and minored in Sociology.

At Albany Law, Patricia is a member of the Albany Law Review, the Chief Justice of the Phi Alpha Delta Law Fraternity, and the ABA At-Large Senator for the Student Bar Association. She has interned for the Third Judicial District Town and Village Courts Unit and served as the Law Student Liaison for the ABA Section of State and Local Government Law from 2020-2021.

Patricia is now a Law Clerk at Pierro, Connor & Strauss, LLC.

Justice Clarence Thomas has prominently defended his take on originalism, which demands adhering to the text of the United States Constitution in a manner that is consistent with how it would have been understood or was intended to be understood at the time it was ratified in 1789. The judicial philosophy of originalism asserts that all text in the Constitution must be interpreted and applied based on historical accounts and the original understanding of the text. According to Justice Thomas, originalism is the best and most legitimate way to interpret the Constitution and other legal texts.

Over the course of his tenure on the Supreme Court, Justice Thomas has shaped his own unique approach to interpreting the Constitution and other texts, all the while keeping in line with the fundamentals of originalism. Justice Thomas supports the conviction that originalism is the jurisprudence most compatible with the American Government and the original intentions of the Founding Fathers. Moreover, he “rejects the notion… that the Constitution is a ‘living document’ and that Supreme Court justices should creatively adjust the meaning of its terms…”

This paper examines the relationship between Justice Thomas’ judicial philosophy of originalism and the doctrine of qualified immunity. This paper introduces the cultural and historical doctrine of qualified immunity through the originalist perspective and posits that the Court should reconsider the legitimacy of this judicial doctrine. Further, this paper argues that from Justice Thomas’ perspective, qualified immunity has a weak foundation in legal texts and at common law. From the premise that it is not well supported under the methodology of originalism, this paper discusses Justice Thomas’ concerns with the doctrine of qualified immunity and thus, the implications it has for his jurisprudence.

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To read the paper, open HERE.