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Join NYSBA’s 118th President David Miranda each week as he interviews some of the biggest names in law and politics. Each week he discusses all things legal – and some that are not. You have the right to remain listening.
David:
Welcome to Miranda Warnings Roundtable, discussing legal issues and current events. I'm joined on the Roundtable by Liz Benjamin and Professor Vin Bonventre. Liz is the managing director at Marathon Strategies, a public relations and communications firm, and former host of Capital Tonight, a political and policy show focusing on New York state politics. And Professor Vin Bonventre, distinguished professor of law at Albany Law School and publisher of the New York Court Watcher devoted to commenting on the U.S Supreme Court and the New York State Court of Appeals.
This week on Miranda Warnings Roundtable, we're going to be talking about New York and the New York Court of Appeals, but before we do that, there's been some sad and breaking news that former Associate Justice of the United States Supreme Court, Sandra Day O'Connor, the first woman judge of the Supreme Court has passed. Sandra Day O'Connor, in addition to her other accomplishments, was the recipient of the New York State Bar Association's Gold Medal, and she will certainly be missed. She was a trailblazer for women on the court, and I thought it would be worthwhile mentioning at the top of the episode. Vin and Liz, I give you an opportunity if you want to say something.
Liz Benjamin:
It's so interesting that first of all, you have probably a lot of people, when I saw her name, I was like, oh, hadn't really thought about her in a while, but she had a very fascinating career, and now you look at the bench and you don't think to yourself like, oh, there was a time when there weren't women on this bench, but it's really her breaking of the glass ceiling on the highest court in the nation is an accomplishment that we don't think about all that terribly much these days. So it really was worthwhile for me to read her obituary and remember all that she accomplished.
David:
I think that's an excellent point, Liz, and the fact that we don't always think about it as much anymore is a credit to her and what she accomplished. Vin, I know that you've studied her opinions and her career.
Vin Bonventre:
Yeah, and let's not just cabin her into being the first woman on the court, which of course is historic. The fact of the matter is she was a great judge, a great judge. She was not one of these judges that came up with some falsified interpretive methodology or mechanical jurisprudence. She was one that really considered the practical realities. What are the impacts of the decisions of the court on real life, on real human beings, whether we're talking about affirmative action, whether we're talking about LGBTQ rights, the separation of church and state, just over and over again.
She was always concerned about that, which of course was one of the reasons why she infuriated some of the others on the court, and she was the swing vote. She was the swing vote on the court. She was a conservative Republican, but she wasn't insane. She had a great deal of common sense and most of her decisions, you look back at them and say, boy, they were wise, very, very wise. I did get to meet her a few times. She actually escorted us. That's us, the finalists for the Supreme Court Fellowship in February of 1986, and I just fell in love with her right then. We got to talk about Arizona, which we both love. I ran into her several times after that. Absolutely a lovely, lovely human being and a great judge.
David:
Well, thank you both very much for those highlights about Supreme Court Justice Sandra Day O'Connor. We had scheduled to talk about the New York Court of Appeals, which we talked a lot about at the beginning of the year, and we hadn't talked about much lately. So following the year of transition, New York's highest court now has a new chief judge in Rowan Wilson, elevated from associate judge, a new associate judge Caitlin Halligan, both in their respective positions since April. We're going to take a look at some developments over the last six months in the court.
I know Vin just wrote an article about the court's caseload. We'll talk about that, the number of opinions and criminal appeals. We'll talk about that a little bit and we'll look at some significant decisions that have come down already from the court this year already. So let's talk about that. Vin, let's start off with this article you just wrote about an uptick in the court's caseload that's noticeable just in the first six months. Tell us what you found.
Vin Bonventre:
Sure. I found that the court's caseload has increased by almost 50% since Chief Judge Wilson has been in charge of scheduling oral arguments, which is quite substantial. It's nothing yet like it was when Jonathan Lippman was chief. When Jonathan Lippman was chief, it was still quite a bit more than Wilson has been able to do so far. But Wilson's getting there and Wilson has made it clear while he was associate judge and made it clear during his interviews for chief judge that he thought the court ought to be hearing more cases, and they certainly are.
And in fact, they just took a look at criminal appeals, and if you look at how many criminal appeals the court had been hearing prior to Rowan Wilson becoming chief judge, it was about 13 or 16 for every four-month period. I've been looking at four months because it's been four months since Chief Judge Wilson has been putting together the schedule. So in his first four months putting together the schedule 26 criminal appeals as opposed to the exact same period the year before, only 13. Again-
Liz Benjamin:
Hold on, Vin. We're on Zoom, so I have a little hand up. Do you see my hand?
Vin Bonventre:
Yeah.
Liz Benjamin:
You see that?
David:
I do. Yeah, you can just butt in.
Liz Benjamin:
In all seriousness, I'm not just doing that for fun, but in all seriousness, and this is a real question. I'm not trying to be cheeky. Why is the number of cases, why does it matter? Why is substance not ... We're really considering the efficacy of a court based on how many cases it is willing to dispose of?
Vin Bonventre:
No, it is not that. But when you think that there are literally millions and millions of cases each year in the court system in New York, it's pretty pathetic when you have seven judges, each of whom have three clerks, the chief judge has four clerks, and they're only hearing, what, 70 cases a year? Come on.
Liz Benjamin:
But of all those cases, how many of them do you think really valuably rise to the level of being considered by the highest court in the state and then substantively to set precedent that then impacts every single resident? There's a lot of cases. I'm not quibbling with that, but I'm going to think that a vast percentage of those cases are not worth the time of the high court.
Vin Bonventre:
No. Look, you're absolutely right. When I was clerking at the court for the first judge, Judge Jason, the court heard over 700 cases a year. Now you slice that in half, slice that in half, say only 300. I'm telling you, in my experience at the court, there were at least two or 300 cases a year that had real substance and the judges were working. I don't want to identify anybody, but I've been told by one of the judges, "I don't have anything to do. Invite me to your class. I'll talk to your class anytime because I just don't have much to do."
David:
I think Liz's point is that what we're more concerned about is the quality of the work rather than quantity. But I know that there was an issue, and Vin, I know you touched on this. There was an issue regarding leave with respect to criminal appeals, that somehow that was problematic because there were a number of criminal appellate issues that just weren't being heard, and so that meant that the decisions were staying the way they were.
Vin Bonventre:
That's right.
David:
Which some had viewed was inordinately anti-criminal defendant, and the fact that at least they were considering more cases, would at least provide the opportunity for some criminal defense issues. And we're going to talk about some of the cases actually that they have opinions on.
Vin Bonventre:
Chief Judge Jonathan Lippman used to say to me when he became chief judge, because he looked at how few criminal appeals the different judges were allowing to come to the court, and he said, "It's just not fair. There are so many cases there which really deserve our attention, and the lawyers and their clients are just not getting an opportunity for their cases to be resolved by the highest court in the state." Now, come on, when you're dealing with, say, recently only 70 cases a year, give me a break, and also don't tell me about the quality and the quantity. I don't think there's anybody who watches, who observes, closely looks at the court of appeals is ever going to argue to you that the opinions of the last several years are somehow of this fine quality, finer than they had been previously. Come on.
Liz Benjamin:
Look, to play devil's advocate, it's predicated on what people appeal. So you can only pick from the cases that people decide to pursue. So there might be something to tease out there based on what actually comes to them, and I'm not saying that they should or should not take more cases, but also the whole system is time-consuming and expensive, and the idea that you have to appeal and appeal and appeal and get yourself up, usually it works that way, not always, to the high court. Not everybody's got the stomach for that or the wallet.
Vin Bonventre:
Well, of course, but we're not talking about a decrease in the number of motions for appeal or leaves for appeal to the court of appeals. They're still getting thousands. It's just that they're rejecting many, many more. They're declining to hear many, many more cases. That's what's going on.
David:
And I think in that regard, there was an article recently in the New York Law Journal by Thomas Newman who noted that there's an increase in a granting of leave by a judge of the court of appeals on criminal matters, and noted that there were opinions in those cases where as more likely to be opinions during this term than in the past when there were not.
Vin Bonventre:
Yeah, Tom Newman wrote a piece for the Albany Law Review talking about the caseload at the court of appeals over the years and how it's been changing, but he's another one that's been saying, "Oh, come on. You could certainly hear more cases. There are certainly plenty of very, very important cases out there that deserve the court of appeals' attention."
David:
Well, it seems, according to his statistics and yours, at least initially, we're seeing an uptick in number of cases that are coming through, and maybe we could talk about some of those cases. Vin, I know you look at all the cases that come in, and I know you have some assessments of the cases and where the alliances might be, and maybe we could talk about that with some of the cases that have come out. There was one that caught my attention recently came down was the case of People versus Cabrera, which is a gun possession case that was post Bruen that went up to the Supreme Court. What'd you think of that case?
They said there were two issues in there. One was whether the consent was sufficient for the search and whether the individual was in custody, and we'll talk about that. But the first issue that was addressed was whether Bruen renders the New York gun licensing unconstitutional, and the court said that they wouldn't consider that because it wasn't raised at trial, but it couldn't have been raised at trial because the Supreme Court decision hadn't come down.
Vin Bonventre:
David, there were several of these gun cases, the Cabrera, David Garcia, Pastrana, and maybe there were a couple of others I'm missing. And in every one of those cases, the court, the majority said the issue about the gun rights was not preserved. And Jenny Rivera in all of those cases are saying, yes, it was preserved. This individual had no reason to be raising the Bruen case because the Bruen case had not been decided yet by the United States Supreme Court. And she said, in the past, when there was an intervening decision which would change the law, that we excuse the fact that somebody didn't raise the change of law at the trial level. And so she was the only one that said, "Look, I think we ought to be addressing the gun rights issue." And the rest of the court didn't. But this thing about preservation, let's be real about it. Preservation is a way to get rid of a case if you don't want to address it. And I don't think there's any question looking at these cases. The court just did not want to address it yet, unless it absolutely had to.
David:
Liz was groaning there, so-
Liz Benjamin:
Well, no, I'm trying to remember, remind me, did the Supreme Court take the New York gun case? No, right?
David:
It did. No, it did. It found that it was unconstitutional.
Vin Bonventre:
The Bruen case. Yeah.
Liz Benjamin:
The Bruen case, right. I guess I'm not trying to excuse the court, our court rather, the New York High Court. Since the Supreme Court weighed in on that particular case, I don't know, gun cases are so difficult and controversial and polarizing. Why would we not-
David:
But it's important to the person that's arrested for a gun crime that the Supreme Court has now indicated the legislation that he or she was arrested under is unconstitutional. That would seem to be pretty important to the person arrested.
Liz Benjamin:
Why does that not just automatically vacate the conviction?
David:
No.
Vin Bonventre:
Well, because there are other issues that arise. They're all not about the New York requirement that was overturned in Bruen, that the individual must prove that the individual had some special cause, some proper reason for being able to possess a gun, get a license. That wasn't necessarily at issue in these cases. There were other kinds of conditions placed upon possessing a firearm, and which the court of appeals could have addressed that weren't really addressed in the Bruen case.
So there's all kinds. Whether somebody who's been convicted in the past of a felony, whether there can be restrictions on allowing somebody to get a license to possess a firearm if the person had been convicted of a felony in the past. That has not been decided yet. Whether somebody who is convicted of a domestic violence offense, whether or not that person can be restricted. That case, by the way, is at the United States Supreme Court right now. So there are all kinds of variations of gun restrictions that have not been decided by the Supreme Court.
David:
I wanted to talk a little bit about this Cabrera case. I know you mentioned a couple of them. This one caught my eye because there was an issue that the court of appeals had to decide, which was whether handcuffing and detention is sufficient to be considered in custody for the purposes of being provided with a Miranda warning, which I also shout out to the Miranda warnings.
Liz Benjamin:
Branding. Branding placement. Every time a person gets pulled over and read their rights, it's branding placement.
David:
Absolutely. But the question was, is handcuffing and detention sufficient to be considered in custody? It would seem as though certainly should be, and the court of appeals said it was, but it surprises me that that would be an issue.
Vin Bonventre:
Well, that's because the court of appeals with regard to seizure issues has been absolutely dreadful, among other reasons, because there were a couple of these Scalia decisions which were just ridiculous. And Chief Judge John Roberts has been trying to clean up the mess that Scalia made. There's this Hadari case in which Scalia said that it did not implicate a seizure at all. If the police are chasing somebody, they have no reason, no warrant, no probable cause, no reasonable suspicion, and they chase this person and the person finally falls and they get him. And Scalia said, "Well, that's not a seizure. The person's not in any custody for Fourth Amendment purposes because there wasn't any physical force applied on this guy." So you have nonsense like that. And with regard to custody for Miranda purposes, fifth amendment purposes, they're doing the same kind of nonsense. It's like, well, you would think that the police should be reciting Miranda warnings to the accused, to the suspect. And the court says, no, it's not custody. No, it's not custody. No, it's not custody.
David:
Well, in this case, the New York Court of Appeals actually said that is custody.
Vin Bonventre:
Yes.
David:
Which would seem-
Vin Bonventre:
But that's not that. The Supreme Court, I think in previous cases has said simply because somebody is in handcuffs does not mean that person's in custody.
David:
You're talking about the US Supreme Court. So there's obviously a difference in the jurisprudence of the two courts. And New York State also has the New York State Constitution that the court of appeals is able to apply beyond what the US Supreme Court has.
Vin Bonventre:
Absolutely. For the United States Supreme Court custody for the purpose of Miranda warnings and the Fifth Amendment really is, is somebody incommunicado, are they in some kind of an interrogation room with the light hanging down? The person is absolutely by himself. He's isolated and he's frightened. That's custody for the Supreme Court.
Liz Benjamin:
Vin is operating in the 1950s still, just to be clear.
Vin Bonventre:
Well, the Supreme Court is saying that that is custody, what we used to do in the '50s, and other than that, it's not custody.
David:
Well, at least in New York in this case, and I think the majority at least pointed out that in this particular case, when the person was handcuffed and detained, that it would count as being in custody. But they didn't go so far as to say that that would be the case every time.
Vin Bonventre:
That's right.
David:
Every time. Although the dissent in this case felt that it should be a per se rule, that if you're handcuffed and detained that that would count as in custody. There was another interesting case about the stopping case, People versus Rodriguez, also known as the bicycle stop case. So there was an issue as whether, obviously if you stop and auto and detain the occupants, that would constitute a seizure, but in this case, the person was on a bicycle and the court held-
Liz Benjamin:
And the court said, yep.
David:
... bicycle stop is a traffic stop. Same as an auto.
Liz Benjamin:
Well, here's the thing though. Look, all of this to me begs the question a little bit, since I'm the only non-lawyer in the room, and when we talk about the custody case, not to get back to that, but the logical person on the street, if you stopped a person on the street and you said, "If a person is in handcuffs in the back of a police car, are they in custody?" I think most logical people would say yes. In this instance, bikes actually have to adhere to the rules of the road.
Now, I'm a cyclist myself, and am I always doing the correct hand signal thingies that I'm supposed to be doing? I'm always wearing my helmet just to be clear, which everyone should do because it's a safety issue. This is my PSA of the moment. But if you are a vehicle, even a self-propelled vehicle that has to adhere to the rules of the road, then it would seem logical that if a law enforcement officer pulls you over, you have the same rights as you would. Just because you're not in a car how is that any different?
Vin Bonventre:
I agree entirely with Liz. I don't even understand why this was an issue.
Liz Benjamin:
Me neither.
Vin Bonventre:
The fact of the matter is if the police are going to arrest somebody, they need probable cause and they need a warrant. Unless it's some kind of an urgent situation, but they still need probable cause, excuse me, to stop somebody, whether that person's in a car, whether that person's walking, whether that person's on a scooter, regardless of whether that person is jogging down the street or anything. Reasonable suspicion is required for law enforcement to actually stop somebody. So I don't understand why it would be different for a bicycle.
David:
Same requirement for everything.
Liz Benjamin:
Why not? And if you're saying that it's-
Vin Bonventre:
You stop somebody. Yeah.
David:
Well, the question is whether it constitutes a seizure. So that was the issue, whether it constituted ... if you're in a car and you're detaining someone in a car that's considered the seizure. Now, apparently bicycle is-
Liz Benjamin:
Why wouldn't it? It's a vehicle. It's a mode of transportation. Just because it's self-propelled.
David:
Yeah. The dissent talks about, well, what about skateboards?
Liz Benjamin:
Yes,.
Vin Bonventre:
The same thing. If you stop somebody.
David:
People that run fast.
Vin Bonventre:
That is a seizure.
Liz Benjamin:
No, no, no, no. Not people that run fast because that's not vehicular. I would argue you could make the distinction, and I know what the opposition said, but you can make the distinction that if a person is utilizing a skateboard or a scooter or a city bike or now you get a little bit funky with roller skates or inline skates, but there is a method of transportation that is being utilized.
David:
Anything with wheels according to ... What if you have those sneakers? What if you have those sneakers where the wheels pop out?
Liz Benjamin:
Those are wheels you just said. Wheels was the defining factor.
David:
It's the Liz jurisprudence. If it's on wheels then it's-
Liz Benjamin:
It's like, oh, but I'm on a snowmobile and the snowmobile doesn't have wheels. It has treads. Or I'm skiing down-
David:
What about those big shoes in the snow?
Liz Benjamin:
Snow shoes? That's what they call them I think.
David:
Snow shoes.
Liz Benjamin:
Those things?
Vin Bonventre:
I don't understand why vehicles or wheels has anything whatsoever to do with it. The fact of the matter is if law enforcement stops somebody, they must have reasonable suspicion. That's been the law for a long, long time. That is a seizure. Police can come up to somebody and ask a question. That's one thing, but they can't stop somebody. I don't care if they're walking, they're skipping. They're on a scooter, they're on a bike. Police cannot actually detain somebody unless the police have some Justification, and the lowest form of justification in constitutional law is reasonable suspicion, and that should apply whether it's a bicycle, whether it's a scooter, I don't care what the heck it is.
David:
All right.
Liz Benjamin:
David's like, these people are getting impassioned. They're impassioned about bicycles. I don't know where to take this. I'm moving on.
David:
I think I understand the two positions.
Vin Bonventre:
I think there should be a higher standard for bicycles because they are doing an environmental justice to the climate.
Liz Benjamin:
I knew you were going to say that. I was wondering when you were going to get there. There should be a higher standard for anything that is self-propelled and therefore not generating emissions.
Vin Bonventre:
Absolutely. I'm with Liz on this one.
Liz Benjamin:
I was wondering when you'd go there.
Vin Bonventre:
David, David, David, David. Can we say, as I look over what's going on at the court of appeals it's not just about any particular case.
David:
Tell me the big picture.
Vin Bonventre:
It's about something else that's going on that when you look at all the cases, at least to a nerd like me, something really pops out. When Janet DiFiore was the chief judge and Cannataro was appointed to the court, he never dissented even once while she was on the court, while she was the chief judge. When he was the acting chief, he only dissented in one case, and that had to do with whether firefighters with disabilities were entitled to certain benefits. Of course, he voted against the firefighters and he lost that one. One dissent the entire time he was on the court until Wilson became ... He was always on the winning side since he's been on the court, but no longer. Now you have Garcia, you have Singas, and you have Cannataro in dissent quite a few times since Wilson has become chief. This court is being turned around. I don't think there's any question about it.
Liz Benjamin:
Is that a good thing?
Vin Bonventre:
Well, for those of us who think that the court has been really pathetic for the last several years, I do think it's a good thing.
Liz Benjamin:
Dissent is healthy.
Vin Bonventre:
Well, this has not been the court of appeals that many of us are used to that are proud of that's one of the great courts in the country. Nobody would seriously argue that this has been one of the great courts in the country over the last several years.
David:
I don't know, Vin, I'm going to push back a little bit on that. I did some reading on these cases, a couple of ones that you pointed out. I thought the opinions were really quite good on both sides of the issue. Across the board I thought they were well-written. They were interesting. I understood where they were coming down. It wasn't unclear, especially on the criminal matters.
Vin Bonventre:
No, I think this [inaudible 00:28:55]
Liz Benjamin:
You're making the argument for him. You're making his case, David. What he is saying the court's been turned around. You're saying, oh, and it's going in a direction that he appreciates. In other words, moving back more towards the high water mark of the previous court. So you're actually just underscoring that.
Vin Bonventre:
In all those cases, the majorities were written by either Wilson or Vera or Halligan. Three really bright, bright judges.
Liz Benjamin:
Can we talk about Halligan for a second, just for one second?
David:
Sure.
Liz Benjamin:
Because when we talk about, I know we were going to get to this, and I don't mean to jump the gun, but let's talk about redistricting.
David:
Yeah. Let's talk about the redistricting case and when we get to redistricting there's the case matter of Hoffman versus New York State Independent Redistricting Commission. This is, I'm going to say part two of the Park and Rider case that came last year, and we really can't talk about Associate Judge Halligan on this case because-
Liz Benjamin:
Oh yes, we can.
David:
Well, wait a second. Well, wait a second.
Vin Bonventre:
Do you have some inside dope about why she recused herself?
Liz Benjamin:
I don't have inside dope, but the fallout or, not the implications, what will happen as a result of her recusal and the result of the fact that actually you have a judge brought up to replace her, if I'm not mistaken.
David:
Well, but that happens all the time.
Vin Bonventre:
That's right.
David:
There's a number of cases, including ones that we've just-
Liz Benjamin:
I thought only if the panel couldn't meet the quorum.
David:
No, they have to if you can't get a quorum, but they're allowed to whenever there's a vacancy. And on some of the cases we've been talking about, there have been judges that were brought up. In some instances, they actually write the majority.
Vin Bonventre:
And some of them who actually have been vouched in by Wilson voted against him. It used to be the customary practice was that the court would hear the case, and if they were divided three to three, then they would vouch somebody in. Come on, you know the games that can be played by that? People are complaining that Wilson has changed it. Now, what Wilson says is, if there's a possibility at all that it's going to be three to three vouch somebody in before we hear the case so we don't have to hear it all over again.
David:
Yeah. Because under the prior way it was done, if there was a tie, then you would have to go through the whole process again.
Vin Bonventre:
The whole darn thing again.
David:
New person on the bench, new arguments, another bite at the apple.
Vin Bonventre:
Yeah.
David:
So on this case, the new associate judge Halligan recused herself.
Liz Benjamin:
Because of some sort of relationship, either a personal relationship or a professional relationship.
David:
I don't think there was any statement as to the reason.
Liz Benjamin:
No.
Vin Bonventre:
Well, she checked the box. There's a form now that they check a box, but every time you're asked to fill out a form by checking a box, there's usually nothing that is precisely resolving the reasons why you are doing something. We see that with race. Fill out what race you are, what the hell are you talking about?
David:
Look, if a judge thinks that there's some reason why they should recuse themselves, then I don't think that there should be anything to read into that.
Vin Bonventre:
It's better that they recuse themselves.
Liz Benjamin:
Yes. I don't have a problem with the recusal. I just think it's fascinating because it's hard to read the tea leaves about where this comes down because Renwick didn't really say very much. So it was difficult to say where the judge would come down on this particular case.
David:
Well, it is, and so this case was argued a couple of weeks back. There's been no decision yet, and I'm sure after there's a decision we'll talk about it. So it's really unknown. What struck me about the argument was it seems like the real issue is the whole, whether it was timely under the mandamus rules, whether it was within the four months. They spent an awful lot of time talking about where the four-month clock started to get-
Liz Benjamin:
Well, whether the last decision only applied to the last election cycle, in which case the commission would have to go back to the drawing board.
David:
Liz, yeah, that's correct. That's the underlying issue. But there was a procedural issue in the case that I think took up much of the time in the argument, which was fairly lengthy, where they talked about when the case should have been brought, whether it was brought in a timely fashion. Was it brought when the redistricting commission said that they weren't going to do a second set of maps, or was it at the last moment when the redistricting commission could have submitted another set of maps? It was really just procedural. A lot of the discussion was just procedural, not about the underlying substance of what's going to happen that, Liz, you brought up.
Liz Benjamin:
Well, the thing is though, we were talking earlier about appeals, and not in this context, obviously, but if this gets shot down on a technicality like the timing, I think people are going to be very angry and go higher or seek to go higher.
Vin Bonventre:
Well, it is a way for some of the judges to get rid of the case.
Liz Benjamin:
To save face.
Vin Bonventre:
So they don't have to decide it on the merits.
Liz Benjamin:
Which I think is weak.
Vin Bonventre:
Well, yeah, but that's what they did, for example, in all the gun cases. No, it's not preserved. It's not preserved, yeah, because the Supreme Court hadn't even decided the case yet. So they do these kinds of things, but I think there are several judges on the court that actually want to get to the merits and want to say, look, the remedy the first time around was really non-constitutional. I don't want to say it was unconstitutional because I don't know what else the court could have done, but it certainly is not within the procedures as the state constitution requires. So it seems like it was just an emergency measure. I think that's really the substantive issue in the case. Whether or not it was done previously was just an emergency measure.
Liz Benjamin:
But this is so political though, Vin. But when you are dealing with ... It makes branches of government uncomfortable to sit judgment on one another. Not necessarily that there's not a long history of the judiciary involving itself in the outcome of elections. Certainly go back to hanging chads and whatnot, but this is such a political matter. The criticism of the decision that rejected this in the first place that started this whole conversation was so fraught about who appointed whom and who was in whose pocket, et cetera. I could understand if I were a justice, I'm not saying it's right because it's weak, but I could understand it. I was like, ah, technicality. Let's just move it along.
Vin Bonventre:
But of course, in this case, if the court does say there needs to be a new redistricting, it's really just criticizing the previous decision, at least the remedy for the previous decision. It's not criticizing another branch of government.
David:
I think there's daylight there between the two, Vin. The previous decision made a decision for that particular election. They didn't say that it was going to stay in perpetuity until the next sentence.
Vin Bonventre:
But they didn't say the opposite either. They didn't say the opposite either.
David:
I think there's daylight there. They said the process wasn't constitutional. They're going back now and saying, okay, you said the process wasn't constitutional. Let's make it constitutional.
Vin Bonventre:
Absolutely.
David:
And so I think you can have it both ways actually. You can accept the prior case and also accept now that we're going to follow the Constitution, because now we have a little bit more time. Before they didn't have the time to do it.
Vin Bonventre:
Once again, David, you've clarified a difficult issue. No, it's true. So on the one hand, the court might've well been correct that what the Democrats had done was partisan gerrymandering, unconstitutional under our state constitution. But number two, what do you do? Well, what the court did on an emergency basis was send it to this trial judge who then carved up the state. But that doesn't mean that the carving up the state by that trial judge is the permanent remedy. Like you said, there's nothing in that opinion that says this is the permanent remedy. Unfortunately, there isn't anything there that says it isn't.
David:
So we're going to have to wait and see on what the decision is by the court of appeals and when they come out with their decision, we'll talk about it again, I'm sure at length. There's one more issue that I want to talk about, and that's involving the US Supreme Court. The three of us have talked quite a bit in the past about the Supreme Court and some of its conduct and its lack of ethical rules, and the Supreme Court I think was listening.
Liz Benjamin:
Oh, please.
David:
I'm pretty sure, Liz, that they were listening.
Liz Benjamin:
No, no.
Vin Bonventre:
They were listening, Liz.
Liz Benjamin:
Wait, hold on. You were going to say they were listening and they responded by giving themselves a non-code of ethics. What did you call it? You called it whatever you called it.
Vin Bonventre:
A code of accommodation.
Liz Benjamin:
A code of ethical accommodation. This is such transparent balderdash. You can't call something a code of ethics if it has no mechanism of enforcement. Any way of reporting and holding yourself accountable is bull. I'm sorry. It's bull.
David:
Well, the court said in its statement regarding what it refers to as a code of conduct says the absence of a code previously led in recent years to the misunderstanding that the justices of this court regard themselves as unrestricted. So basically they submitted this, Liz, to correct the misunderstanding that was out there, not because they needed-
Liz Benjamin:
Who's misunderstanding? Their misunderstanding.
Vin Bonventre:
Come on, Liz. You got-
Liz Benjamin:
No, here's the thing.
Vin Bonventre:
You got the New York Times, you got the Washington Post and Miranda Warnings misunderstanding what the Supreme Court is doing.
David:
That's right.
Liz Benjamin:
Here's the problem. Have you ever heard the saying, if it walks like a duck? How could you possibly not know that to be taking gifts from rich donors and being flown around and all the mishegoss that goes on is not appropriate for public figures?
David:
That's so unseemly.
Liz Benjamin:
Are you saying that as a lifetime appointee, you are somehow held outside the confines of acceptable behavior that everybody ... Again, we go back to the logic of the average person on the street who would look at scans at all of that and say, that smells like doo-doo. Smells.
Vin Bonventre:
Would a reasonable person have grounds to think that a judge is impartial because of that? Well, yes, of course, and that's the federal law, but the Supreme Court has deemed it not to be applicable to themselves.
David:
What's interesting that even in this code that they've put down, which they said is really nothing new, they said it's not would a reasonable person consider that to be improper, but a reasonable person that has all the knowledge of all the facts, including all the facts that the Supreme Court justice has that isn't being shared publicly.
Liz Benjamin:
Which is no one. Which is exactly one person, the justice themselves.
Vin Bonventre:
That's right.
David:
Well, that's the question I have.
Vin Bonventre:
In the code of ethics-
David:
What does this prevent? What does this actually prevent?
Liz Benjamin:
Nothing.
David:
And if someone violates it, what happens?
Liz Benjamin:
Nothing.
Vin Bonventre:
We don't know. We don't know.
Liz Benjamin:
No.
Vin Bonventre:
There's no enforcement.
Liz Benjamin:
There's no enforcement.
Vin Bonventre:
The code of ethics and federal law is to prevent even the appearance of impartiality because it's so darn important in our republic that people have faith in the judiciary. This new supposedly code of ethics does nothing with regard to that. If the justice can say, well, I have facts the public doesn't know. The public all thinks I'm totally biased and partial, and I'm getting gifts from billionaires, but they don't know all the things I know. No, the appearance of impartiality is so extraordinarily important for courts.
Liz Benjamin:
This to me, was actually a thumbing of the nose at all of the critics that we were naming earlier in Miranda Warnings, of course, in the New York Times and the Washington Post. You want a code of ethics? We'll give you a code of ethics. Shut up. Here's your damn code of ethics. Now leave us alone. That's how I read that. We don't really give a hoot about you.
Vin Bonventre:
Liz, do you think that maybe Chief Justice John Roberts got as much as he possibly could?
Liz Benjamin:
Yeah. And what does that say about John Roberts?
Vin Bonventre:
That his court would go along with?
Liz Benjamin:
Yeah, it says not a lot about John Roberts then does it?
Vin Bonventre:
Hey, there are nine independent justice groups on the court. There are nine independent ones. They are like nine separate law firms. It's not as though, well, I'm the chief and this is what I'm going to do. That's not the way it works.
Liz Benjamin:
Yeah. But it's different.
Vin Bonventre:
He's got to get the consensus of his court.
Liz Benjamin:
I understand, but I would argue that this is different from a chief justice administrative point of view. This is not, we are all coming together with our respective legal expertise and battling it out to determine what is the appropriate outcome of this or that case. This is, I'm the guy who's put in charge to run the court, and as an administrative responsibility, I am telling you guys that what you put together here is not acceptable.
Vin Bonventre:
Yeah. Well, he also has not only this new code of ethical accommodation, but he also is setting up some kind of a committee, I forget what it is, some kind of a review board or monitoring board, and maybe they're going to refine this code.
Liz Benjamin:
Vin, can I just note to you that the time-honored tradition in government, when you don't know what to do is to create a task force or a commission and to kick the can down the road.
Vin Bonventre:
Yeah.
Liz Benjamin:
Sorry, I am the skunk at the garden party. I am a skeptic and I think that this whole thing is-
Vin Bonventre:
Oh, yes. So am I. Yeah. Yep.
David:
Right. Well, the New York State Board Association certainly knows a thing or two about forming committees and ...
Liz Benjamin:
Maybe [inaudible 00:44:35] and send an appropriate blueprint of ethics. The Miranda Warnings ethical guidelines.
David:
We'll do an AI summary of the podcast and we'll send that off to Chief Judge Roberts' new committee.
Vin Bonventre:
David, I know you wanted to talk about the Stevens case, which I think is extremely important. Not only-
David:
You want to talk about Stevens?
Vin Bonventre:
Not only the Stevens case by itself, but as compared to what the United States Supreme Court has been doing with this major questions doctrine.
David:
Well, the rulemaking, we did talk last time on Miranda Warnings about the Supreme Court addressing issues regarding rulemaking, and of course the Stevens case versus the New York State Division of Criminal Justice talks about that in the New York State context, whether a legislative grant of rulemaking authority of the Commission on Forensic Sciences to promulgate DNA search regulations was appropriate, and court said yes.
Vin Bonventre:
Yeah, well, the court said speaking through Wilson, so of course that means you got a pretty damn good opinion. Wilson is saying, look, this is a matter of statutory interpretation. It's pretty darn clear from the statute's delegation to the Data Bank Commission that they were giving the commission this particular power. This is not one of those cases where the statute's not clear at all, and therefore you have this commission coming up with rules which aren't clearly authorized under the statute. But not only that, as opposed to the environmental protection case, the Supreme Court and the student loan case at the Supreme Court, where Roberts comes up with this major questions doctrine.
So even though the Congress delegates authority to a commission or some agency, the agency can't go too far because that interferes with separation of powers. If they're going to go too far, that kind of authority belongs to the Congress. But what Wilson did here is say, this is not a matter of clarity or not. This statute is very, very clear. It's very clear it does give the commission this authority, and he doesn't even talk about the major questions doctrine. We're not concerned about that.
David:
Well, what's interesting in this case, and we're going to tie it all in here, because there's two judges that sat by designation, Judge Lindley and Lynch, and they joined-
Vin Bonventre:
The dissent.
David:
... Judge Troutman and the dissent, and Lindley actually wrote the dissent, and they said, there was I think a good line here that I think picks up on what you said, that in this situation, they dissented because the conduct crosses what they called the hazy line between administrative rulemaking and legislative policymaking. In this case, they crossed that hazy line.
Vin Bonventre:
Yeah, and I think it was a very good opinion. This is one of those cases where you want a good court of appeals to be resolving it. It's a tough case. There are good arguments on both sides. I think Wilson got it right, but you could go either way. I think you're absolutely right, David.
David:
And I think to bring back to Liz's point about the sitting by designation, it is clear that from the decisions here, that there's no fear or favor by these designees because as often as not, they're on the other side of where Chief Judge Wilson is.
Liz Benjamin:
I thought you were going to end on, "You're right, David." I thought that when Vin said you were right, you were going to be like, "And that's a wrap."
Vin Bonventre:
What he should have said was, yes, Vin says I'm right. He's never said that about Liz. Actually, I did say you were right last week about something.
David:
You did.
Vin Bonventre:
Or last month. I did.
Liz Benjamin:
I don't remember that, Vin, but I'm going to start taking notes.
David:
You were very complimentary. I think it was you were getting into holiday mode. You were very complimentary.
Liz Benjamin:
Next time, eggnog.
David:
All right. Eggnog next time. Thank you both. When this redistricting number two comes out, we might have to have an emergency podcast.
Liz Benjamin:
Is there a regulatory structure for that? How do we go about calling one of those?
David:
I'm going to form a committee to determine how we do that.
Liz Benjamin:
Okay. Talk to you later, gentlemen. Bye.
David:
Thank you both. Love you both.
Vin Bonventre:
Thank you.
David:
Take care. Bye-bye.
Vin Bonventre:
Always good.
Liz Benjamin:
Bye.
David:
Thanks guys.
Vin Bonventre:
Terrific. David, this was fun.
David:
Yeah, really good. Really good. Yeah. Thank you both.
Liz Benjamin:
Bye.
Vin Bonventre:
Hey, Liz, you're still in a car?
Liz Benjamin:
Yes.
David:
All right, Liz. All right. You guys have a good weekend, both of you.
Vin Bonventre:
Okay. We'll see you now.
David:
We'll talk soon. Emergency podcast coming up.
Vin Bonventre:
Great.
David:
All right. Bye. Okay.
Speaker 5:
Yeah. You stop or leave.
David:
Okay, I'm not going to touch it. All right. I don't think there was anything that needed to be cut in there.
Speaker 5:
No, I think it went well. Stop recording.
David:
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