Relitigating Dobbs in a Conservative Court: The Potential Road from Justice Thomas and Natural Law

By James C. Ashley

James C. Ashley is a summa cum laude graduate of Albany Law School, class of 2023. He graduated with a bachelor’s degree in Spanish Linguistics from SUNY Albany, also summa cum laude.

At Albany Law School, James was an Executive Editor for Notes and Comments on the Albany Law Review, a Sponsler Fellow in Civil Procedure, and a Teaching Assistant in Lawyering. He was the winner of the 2022 Domenick L. Gabrielli Appellate Advocacy Moot Court Competition. James interned with the New York State Division of Human Rights, as well as with Cahill Gordon & Reindel LLP, where he will begin his career after the bar exam.

As early as 1991, reporters predicted that if selected for the Supreme Court, a Justice Clarence Thomas would one day vote to overturn Roe v. Wade.

At his confirmation hearing, he was questioned about his prior embrace of the doctrine of natural law—the belief in the existence of a higher law that can be discovered by human reason—to draw out his views on abortion. Thirty years later, the Supreme Court held, in Dobbs v. Jackson Women’s Health Organization, that the Federal Constitution does not provide protection for a woman’s right to have an abortion, with Justice Thomas voting to overturn Roe as predicted. He concurred separately, but with no explicit references to the natural law doctrine.

This paper examines Justice Thomas’s opinions on abortion for either implicit or explicit references to natural law. Then, it weighs the feasibility of several novel arguments that could be used to relitigate Dobbs before a conservative Court.

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To read the paper, open HERE.

Supreme Loss: A Largely Ineffective Supreme Court Without the Sandra Day O’Connor Swing

By Elise I. Butler

Elise I. Butler is a third-year student at Albany Law School. Prior to attending law school, she graduated from Hamilton College where she majored in Psychology and minored in Biology.

At Albany Law, Elise serves as Executive Editor for Notes and Comments on the Albany Law Review. She has been a Sponsler Fellow in Federal Civil Procedure, a teaching assistant in Criminal Law, and a Peer Writing Assistant. Elise competed in Albany Law’s Senior Prize Trials, where she finished as a semi-finalist.

In her final semester at Albany Law, Elise is currently interning for Judge Mae D’Agostino in the Northern District of New York.

Justice Sandra Day O’Connor is often referred to as the most influential woman in American history.  This is largely due to her fair, impartial, and reasoned votes as a justice on the U.S. Supreme Court.

O’Connor put her politics aside and voted not with the Republicans or Democrats, but with the side that deserved to prevail under the Constitution and law.  In today’s political climate, O’Connor’s reasoned, non-partisan voting is sorely missed.  Many hyperpolarized decisions reaching the Court today can be predicted based on the political affiliation of each justice’s appointer, something that was impossible with O’Connor on the Court. 

This paper explores the influence that Sandra Day O’Connor’s reasoned judgment had on the Court and on the law, and why it is sorely missed on the Court today.  This paper begins with a discussion of O’Connor’s judicial philosophy and influence on the Court and the law.  Next, this paper explores the political climate of today’s executive and legislative branches and their influence on the increased polarization of the judicial branch.  This paper concludes with an analysis of two of O’Connor’s opposing opinions on abortion and contrasts her reasoning for both with the reasonings provided in both the majority and dissenting opinions in the Court’s recent case, Dobbs v. Jackson Women’s Health Organization. 

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To read the paper, open HERE.

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.