Part 3, More on Criminal Appeals--NYCOA: The Wilson Uptick

In Part 1 of this series, we saw that the number of cases calendared for a hearing at the Court of Appeals in the first 4 months since Rowan Wilson became New York's Chief Judge increased significantly. A 45% increase over the same 4 months the previous year. In Part 2, we saw that the number of criminal cases calendared for oral arguments for the same 4 months had actually doubled. 

Let's now look more broadly at the changing criminal caseload at New York's highest court under Rowan Wilson.

Source: Office of Governor of New York/
Darren McGee via AP

First, has the increase continued? Since we looked at the calendared criminal appeals in Part 2, three additional full months have been calendared under Chief Judge Wilson. February, March and April of 2024 have been added to the four previous months since Wilson has been responsible for the Court's calendar. So, now, let's compare the seven months of calendars under Wilson--i.e., the seven calendars from September 2023 through April 2024. [N.B., as usual, no oral arguments were calendared for Decenber.]

Under Wilson, the number of criminal cases calendared has continued to increase dramatically. It has nearly doubled as compared to the number for the same months the previous year before Wilson became Chief. For Wilson's first seven calendars, 47 criminal appeals were scheduled for argument. For the previous year, the number for the corresponding seven months was 25. That's an 89% increase.

Lest the Wilson increase be deemed excessive, it should be noted that for the corresponding final seven months of calendars under Chief Judge Jonathan Lippman--i.e., September 2014 - April 2015--the number was 68. Here's how those numbers look:

(click to enlarge for a better view) 

Similarly, the total number of appeals--civil and criminal--has also increased significantly, albeit not as dramatically, under Wilson. For those same seven months of calendars, the total number of appeals calendared for oral arguments increased from 64 prior to Wilson's elevation to 93 thereafter--a 45% increase. Again, lest that increase be deemed excessive, the corresponding number under Chief Judge Lippman was 152! Here's how those numbers look:

(click to enlarge for a better view) 

Returning to criminal appeals, the increase is no doubt largely attributable to Chief Judge Wilson's own view that the Court should be hearing more criminal appeals than it had been in the recent past. This is clearly evinced in his record in granting Criminal Leave Applications.

[For those unfamiliar with Court of Appeals procedures: These CLA's are distributed equally among the Judges. And whether to grant or deny an appeal--i.e., whether to allow the criminal case to be reviewed by the Court--is the sole decision of the one Judge to whom the CLA happened to be distributed. No other Judge participates in that decision.]

Since Rowan Wilson has been a member of the Court, he has consistently been granting a much higher number of CLA's than most of his collegues. For example, in the final three years under his predecessor, Chief Judge Janet DiFiore, Wilson averaged granting 10 criminal cases a review each year. At the other end of the spectrum, Judge Michael Garcia averaged less than 1 grant a year.

Here's how the numbers look for the four Judges who were on the Court for the entire final three year period under DiFiore--September 2019 through August 2022:

(click to enlarge for a better view)

As the graph shows, Wilson had been granting 5 times as many CLA's as Chief Judge DiFiore, and 10 times as many as Judge Garcia. Moreover, Wilson's record has remained the same in the post-DiFiore era. Indeed, for the the last 12 months for which CLA numbers are available, March 2023 through February 2024, he has remained the most generous among his colleagues in granting review. Take a look at the records of the six Judges who have been on the Court for all of these these recent 12 months:

(click to enlarge for a better view)

As the graph shows, Wilson again granted 10 times more CLA's than Judge Garcia. He also granted 5 times more than Judges Madeline Singas and Anthony Cannataro.

Finally, for one more time, lest it be thought that Wilson's record of granting CLA's has been excessive, let's compare his record during the DiFiore era with that of the Judges on the Court under Chief Judge Lippman. Here are the individual CLA records for the final three years of both eras. Take a look:

(click to enlarge for a better view)

Credit: Nathaniel Brooks for The New York Times

The graph displays the records of the Judges who were members of the Court for all three of the final years of the Lippman Court and the corresponding Judges of the DiFiore Court. As the graph makes clear, Wilson's record of granting 10 CLA's a year, although considerably higher than that of his colleagues on the DiFiore Court, would have been quite modest on the Court under Lippman. While his record of granting review was 5 times higher than that of Chief Judge DiFiore (2 average grants), it was less than one half that of Chief Judge Lippman (21 average grants).

Whether Chief Judge Wilson's record of granting CLA's is ideal, too high, or too low is not the point.

(I acknowledge my own view that some of his colleagues have been far too stingy, and that it is better for the Court and far fairer for the litigants and their clients to be allowed a hearing before the state's highest tribunal.)

But whatever is wiser or fairer, the facts are that Wilson has been considerably more generous than most of his colleagues in granting the right to have criminal appeals heard by the Court, and the Court under his leadership has been hearing significantly more criminal appeals than it had in recent past years. No, not as many as were being heard under Chief Judge Lippman. But many more than under Wilson's immediate predecessor, Chief Judge DiFiore.

Next, we'll look at changes in who's been dissenting at the Court, and how the Court has been deciding those divided cases.

Being Chief Judge with Rowan Wilson and Jonathan Lippman, April 25

 Albany Law School's Annual Cooke Symposium

Open to the Community

NYCOA: Takeaways from the New Redistricting Decision

This past week, New York's highest court, in a 4-3 decision in Matter of Hoffman v. NYS Independent Redistricting Commission, ordered the state's bipartisan Independent Redistricting Commission (IRC) to reconvene and to redraw the state's congressional districts. There's much to be said about that decision, both legally and politically.

(click to enlarge for a better view)

Presumably, only a few Court junkies (myself included), the participating lawyers, legal reporters covering the case, the Court's Judges and their clerks, and some diverse others have actually read the 60 pages of judicial opinions. So it might be worthwhile to highlight some of the important--and interesting--takeaways from this case. Here is my own subjective and (out of mercy for my readers) incomplete list.

First, the decision itself and the context:

Last year, the Court, in Matter of Harkenrider v Hochul, declared that the Democratic-controlled state legislature had engaged in partisan gerrymandering, which is explicitly prohibited by the state constitution's 2014 amendment. As a remedy, the Court's 4-3 majority in that case returned the matter to the trial court where the case had commenced, and ordered the trial judge to redistrict the state in time for the upcoming 2022 elections. That upstate Republican judge did so, with the help of a "special master" (a statistician), drawing a purportedly partisan-neutral map for the state's 26 congressional districts.

(click to enlarge for a better view)

The legislature's map that the Court of Appeals had invalidated might well have favored the Democrats to gain as many as six congressional seats. But the trial judge's map resulted in the Republicans flipping four seats from the Democrats, creating a slimmer Democratic majority of 15 to 11.

The Democrats then brought this lawsuit. They argued that the trial judge's map was only a temporary emergency remedy for the fast-approaching 2022 elections; that it was not a more permanent map to last for the remainder of the ten years until the next federal census. As the case proceeded through the state's court system, the intermediate appellate court (the Appellate Division, Third Department) agreed with the Democrats in a 3-2 decision, and the 4-3 Court of Appeals has now agreed as well. In contrast to last year's Harkenrider decision, New York's high court in this year's Hoffman decision ordered the Independent Redistricting Commission (IRC) to do its state constitutional duty and create a redistricting map.

Takeaways from the Decision:

• The Democrats Win.     The Democratic senators got what they wanted. They will now get a new redistricting which, almost certainly, will be an improvement for them compared to the trial judge's map last year. Recall that, earlier this year, the Democratically-controlled state senate had (shamefully) rejected Governor Hochul's first nominee for Chief Judge, Appellate Division Presiding Justice Hector LaSalle. Subsequently, after the Judicial Nominating Commission sent the Governor a new--and very different--list of candidates, the Democratic majority approved her second nominee, their much-favored then-Judge of the Court of Appeals, Rowan Wilson (who--even more shamefully--was left out of the Commission's first list to the Governor). Wilson had forcefully dissented from the Court's redistricting decision in Harkenrider last year and, now as Chief Judge, he has authored the Court's majority Hoffman decision, holding that the previous redistricting by the trial judge was only a temporary measure. The Democrats' political maneuvering has little to do with the legal and constitutional merits of this new decision. But it certainly has major political implications.

• The IRC, Not A Trial Judge     Wilson's opinion for the majority in this past week's Hoffman decision emphasized the limited role that the judiciary is supposed to play in congressional redistricting. Under the state constitution, it is the IRC--with some legislative modification allowed--that has the authority and duty for redistricting. With that in mind, especially considering the context of last year's Harkenrider decision with elections fast approaching, the redistricting performed by the trial judge, as directed by that decision's majority, could only be viewed as a temporary emergency measure, according to Chief Judge Wilson. It was not a more permanent decade-long redistricting. The IRC must now draw that more permanent map.

• Stare Decisis?     According to the dissenting opinion this past week in Hoffman--authored by a clearly angry Judge Anthony Cannataro, who was part of the 4-3 majority in last year's Harkenrider decision--"stare decisis does not permit the majority to overturn our precedent merely because they would decide the case differently now than we did then." [My emphasis.] With all due respect to the dissenters, last year's Harkenrider decision was not a precedent for deciding this year's case. The substantive constitutional issue in this year's Hoffman case was very different. It was not about whether the Democrat's previous redistricting map amounted to invalid partisan gerrymandering. Nor was it about the validity of the Court of Appeals' remedy at that time--i.e., sending the case back to the trial judge to do a quick redistricting that would be ready for the fast-approaching elections. Rather, the case just decided in Hoffman was about whether the remedy ordered last year was a temporary emergency one, or a more permanent decade-long one--i.e., one that entirely superseded the constitutionally assigned duty of the IRC until the next 10-year redistricting. Whether the Wilson majority or the Cannataro dissenters got that question right, it was a very different issue than the ones that were decided in last year's case. 

• The Change in Composition Did It?     Also, according to the dissenting opinion, "the majority is able to reach this result for one reason only: because the composition of the Court has changed." [My emphasis.] Well, the composition of the Court has indeed changed. Former Chief Judge Janet DiFiore resigned and Rowan Wilson--who was on the opposite side of last year's redistricting decision--has replaced her. Also, Presiding Appellate Division Justice Dianne Renwick was vouched onto the Court to fill in for Judge Caitlin Halligan, who had recused herself from the case. So yes, the composition was different. But, as with the previously discussed complaint of the dissenters, this one misses the mark. It has partisan political appeal, but it has nothing to do with the actual legal and constitutional merits of this past week's Hoffman decision--which, again, involved a very different constitutional issue.

• The Exigencies in 2022     Related to the previous three items, both the majority and the dissenters in this past week's Hoffman decision recognized that last year's redistricting, created by a trial judge, had been ordered by the Court of Appeals in Harkenrider because of the urgent circumstances of the fast-approaching elections. As Chief Judge Wilson's majority opinion in Hoffman explained, the Court last year had

  concluded that 'judicial oversight [wa]s required to facilitate the expeditious creation of constitutionally conforming maps for use in the 2022 election'...[The Court] then remitted the matter to Supreme Court [i.e., the state trial judge] to adopt, with the assistance of a special master, constitutional maps 'with all due haste'...Less than a month later, Supreme Court [i.e., again, the state trial judge] certified the maps prepared by a special master as 'the official approved 2022 Congressional map.' [My emphasis.]

  Similarly, in Judge Cannataro's opinion this past week, the dissenters themselves actually explained that, "[i]n [last year's decision in] Harkenrider, this Court determined that it was required to order the adoption of maps as a constitutional remedy for a variety of reasons, including...the exigencies created by the impending 2022 elections." [My emphasis.] Attempting to minimize the "exigencies" as underlying the Court's decision last year, the dissenters actually reinforced that very factor. In the dissenting opinion's own words: "This Court’s opinion necessarily referenced the impending 2022 election at various intervals. However, such references served only to clarify that the remedy would not be postponed until after the 2022 elections." [My emphasis.] None of the foregoing necessarily demonstrates that the majority or the dissenters were right about the substantive merits of this year's Hoffman decision. But it does show unequivocally that the Court's Harkenrider decision last year, to return the case to a trial judge to perform the redistricting, was, indeed, an emergency measure.

• The Constitutionally Limited Judicial Role (A)    Underlying the Wilson majority's conclusion in Hoffman, that the trial judge's redistricting last year must have been a temporary measure dictated by the urgency of the upcoming elections--and not a more permanent substitution for the IRC's role--are several relevant state and federal constitutional prescriptions. As for the New York state constitution, the 2014 Amendment states quite plainly that "an independent redistricting commission shall be established to determine the district lines for congressional and state legislative offices” (NY Const, art III, § 5-b [a]). [My emphasis.] Additionally, addressing a potential role for the courts, that same amendment also provides that "The [IRC] process for redistricting congressional and state legislative districts...shall govern redistricting in this state except to the extent that a court is required to order the adoption of, or changes to, a redistricting plan as a remedy for a violation of law. (NY Const, art III, § 4 [e]. [My emphasis.] The trial judge's redistricting, ordered last year in Harkenrider, might have been the "extent" "required" to remedy partisan gerrymandering in time for the approaching 2022 elections. The majority's argument this past week in Hoffman is that such an "extent" is hardly required any longer, because there is plenty of time for the IRC to perform its constitutional duty before the 2024 congressional elections.

•  Constitutionally Limited Judicial Role (B)    Regarding the federal constitution, it too prescribes a limited role for state courts in the redistricting process. The "Elections Clause" (Article I, Section 4) places the authority for determining congressional districts in the state legislatures: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof." [My emphasis.] In its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Comm'n, the Supreme Court ruled that an independent commission, established in a state constitutional amendment approved by the voters, can validly do the redistricting work as well. So, a state's legislature or a state's redistricting commission may do the work. The dissenters in this week's Hoffman decision relied on another Supreme Court decision, Moore v. Harper, decided earlier this year, for the proposition that--as the dissenters paraphrased it--"while redistricting may traditionally be a legislative function, state courts are the appropriate tribunals to hold state legislatures to compliance with state constitution redistricting requirements." Yes, but in the Supreme Court's own words, the holding was simply that "whatever authority was responsible for redistricting [i.e., state legislature or commission], that entity remained subject to constraints set forth in the State Constitution." [My emphasis.] And more to the precise point here, making clear that state courts were not the ones to do the redistricting themselves, the Supreme Court emphasized that, 

   Although we conclude that the [federal constitution's] Elections Clause does not exempt state legislatures from the ordinary constraints imposed by state law, state courts do not have free rein...We hold only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections. [My emphasis.]

Again, a limited role for the state courts, and one that surely does not seem to include "arrogat[ing] to themselves the power" of performing the redistricting themselves--like the trial court was ordered to do in the Court of Appeals' Harkenrider decision last year.

I'll spare my readers and stop here. Those were the essential highlights I took away from the Court of Appeals' redistricting decision this week in Hoffman. Other commentators might well select their own different highlights and take issue with mine.

One additional takeaway which we'll consider in the next post, continuing the NYCOA: The Wilson Uptick series, has to do with who is suddenly been dissenting since Rowan Wilson became Chief Judge.

Part 2, Criminal Appeals--NYCOA: The Wilson Uptick

We previously looked at the increase in cases being heard at New York's highest court since Rowan Wilson was elevated to Chief Judge this past April and, more specifically, since he began producing the Court's calendars starting with this September's. We saw that the increase has already been half-again what it was previously. That is so whether the several Wilson calendars thus far produced are compared to those produced immediately before he became Chief or to the calendars for the same several months one year earlier. (See NYCOA: The Wilson Uptick.)

Now let's focus on criminal appeals, a source of particular concern the last few years--just as it had been prior to Jonathan Lippman's appointment as Chief Judge in 2009. (See e.g., NY Court of Appeals: Granting Criminal Appeals--Up, Down, Now Up Again? (Part 9: Significant Increase in 2009)) Similar to what we saw in the increase in the Court's schedule of cases generally, there has been an increase in the number of criminal appeals on the Court's calendar. In fact, the increase has been even more significant. It has doubled from what it was a year ago.

Source: Office of Governor of New York/
Darren McGee via AP

As noted in the previous post, even though Wilson was appointed Chief Judge in April, the May calendar of this year indicates that it had already been prepared in March. That means that the first calendars prepared under Wilson are those for the September, October, and November sessions of this year, and the January session of next. As we did with the totals for all cases, civil and criminal, let's compare the number of criminal appeals in these first four Wilson calendars with the pre-Wilson number for the immediately preceding four months, as well as with the pre-Wilson number for the same four months one year ago. For perspective, we'll again include the number for the last four months under Chief Judge Jonathan Lippman in 2015.

Here's what those comparisons look like:

(click to enlarge for a better view)

As depicted in the graph, the number of criminal appeals calendared under Chief Judge Wilson (26) is double the number from the same months one year ago (13); and more than half-again the number for the months immediately preceding the first Wilson calendars (16). To place these numbers in perspective, lest it be thought that the Wilson increase is too much too soon, note the number of criminal appeals in the last four months under Chief Judge Lippman (52)--twice that thus far under Wilson, and four times that from pre-Wilson one year ago.

Credit: Nathaniel Brooks for The New York Times

Related to that last note, lest it be thought that the criminal caseload under Lippman was a historic anomaly, it was actually in keeping with what had been the Court of Appeals' customary output of criminal decisions. Criminal appeals heard by the Court had dropped in the years immediately preceding Lippman's appointment as Chief Judge, and it dropped again after his mandatory retirement. (Remember: New York's moronic law that mandates the retirement of Court of Appeals Judges at the age of 70.)

Here's what that roller-coaster before, during, and after Lippman looked like:

(click to enlarge for a better view)

(Previously prepared for

The Incredible Shrinking Docket, Aug. 2, 2022.)

As reflected in the graph, the criminal caseload doubled when Lippman became Chief Judge from what it had been in the last several years under Chief Judge Judith Kaye. It dropped precipitously again under Chief Judge Janet DiFiore. But the criminal caseload under Lippman was actually much more in line with what it had been in the early years of Kaye's tenure and with what it had been before that under Chief Judge Sol Wachtler. The point being that the 26 criminal cases in the first four monthly calendars under Wilson, which would amount to a criminal caseload of 78 cases for twelve months, is far from an excessive number when viewed in context.

In the next post in this series, we'll look at Criminal Leave Applications. Specifically, we'll look at how many CLA's each of the Judges has been granting. A not-surprising hint: some Judges grant many more than others.

Why I Loved Sandra Day O'Connor

Source: Annenberg Public Policy Center

We learned last week that she had passed away. We knew it was coming. We knew she was quite ill and that the Justice O'Connor we knew had already left us. But we are, nevertheless, newly aggrieved that she is gone.

I didn't know Justice O'Connor well on a personal or social level. But I did have the opportunity to meet her and to spend some time chatting informally several times. The first time was in February 1986 when she was escorting the Supreme Court Fellowship finalists, then a few times during my fellowship year, and once or twice again at some event at the Court or elsewhere.

Credit: Alan Day/Western Horseman

We usually just engaged in small talk. Nothing jurisprudential or otherwise profound, except for our shared, profound love of the Arizona desert. She would speak of her home in the Southwest and growing up on a cattle ranch--a real "cowgirl of the Arizona desert." I would talk of my two Army tours at Fort Huachuca, Arizona, and riding on post for hours every weekend--a wannabe cowboy. I confess feeling a bit special that she would remember me and our Arizona chats each time we met.

So yes, for that reason alone she has had a special place in my heart.

(A dear friend of mine who taught at the University of Arizona became close to her in her latter years on the bench and thereafter, and everything he told me about Justice O'Connor confirmed that my heart was in the right place.)

But let me speak as one who follows the Supreme Court, and who believes that the Court is at its best when it protects civil rights and liberties--limited only by legitimately overriding interests. I have certainly not always agreed with Justice O'Connor. Though she might well have had the better position on many issues.

[Yes, there's Bush v. Gore (2000), perhaps the most dishonest, unprincipled Court decision of the modern era--regardless of how one feels about the ultimate outcome. Her vote in the bare majority was inexcusable. Later in life, she seemed to recognize that.

N.B., many of the great Justices in Supreme Court history have likewise cast a deplorable vote or authored some dreadful majority opinion.]

Nevertheless, without surveying her entire body of judicial work, it would be accurate, albeit barely relevant, to say that I did agree with her on many of the most important issues of the day. Much much more important than that, however, I admired how she typically strove to strike a wise balance between the competing needs of liberty and order, as opposed to elevating some rigid ideologically-driven methodology for decision-making.

Here are just a few of Justice O'Connor's opinions that, in my view, show what a fine Justice she was:

Credit: Kevin Wolf/Invision/AP

Mississippi University for Women v. Hogan, 1982: O'Connor wrote the opinion for the 5-4 majority that the state nursing school's restriction to women was invalid sex discrimination. Rejecting the dissenters' insistence that the women-only institution was "discriminat[ing] invidiously against no one," she explained that the state was actually perpetuating "archaic and stereotypic notions" about the proper roles for men and women.

Planned Parenthood v. Casey, 1992: O'Connor co-authored a three-Justice plurality opinion to sustain a woman's right to choose. Articulating an "undue burden" standard to balance the "personal liberty" of deciding whether to carry a pregnancy to term against "the demands of organized society," she rejected the four dissenters' absurd argument that there could be no such constitutionally protected right to choose an abortion because, among other things, "the Constitution says absolutely nothing about it."

[For more on that preposterous argument, see The Leaked [Dobbs] Opinion--Constitutional Nonsense Revisited* (Part 1), May 7, 2022. Of course, Dobbs overruled O'Connor's balanced approach.]

Lawrence v. Texas, 2003: O'Connor joined the Court's 6-3 decision to invalidate Texas's law criminalizing "sodomy" engaged in by members of the same sex. She did so, in a separate concurring opinion, based on constitutional equal protection, arguing that mere "moral disapproval" does not "justify a law that discriminates among groups of persons"--notwithstanding the dissenters' reliance on "the moral opprobrium that has traditionally attached to homosexual conduct."

Grutter v. Bollinger, 2003: O'Connor authored the Court's 5-4 decision upholding the limited consideration of race to ensure the "compelling" benefits of diversity in education. But, while rejecting the dissenters' argument that racial preferences were necessarily prohibited by equal protection, she did insist that educational institutions must ensure "narrow tailoring," such that any "race-conscious admissions program [does] not unduly harm members of any racial group."

[Of course, as with her balanced approach on the right to choose in Casey, the Court recently overruled her approach to affirmative action, invalidating any consideration of race in education admissions, in Students for Fair Admissions v. Harvard (2023).]

Ewing v. California, 2003: O'Connor wrote a plurality opinion which, however, secured a majority of her colleagues for the proposition that the "cruel and unusual" prohibition of the 8th Amendment did forbid punishments that were grossly disproportionate. She rejected the view, repeated by a couple of Justices in several cases, that the Constitution prohibited only "horrid modes of punishment" such as "flaying alive, rending assunder with horses...maiming, mutilating and scourging to death." [Justice Scalia's reference to his opinion in Harmelin v. Michigan, (1991).] To O'Connor, the mere fact that the term "excessive" was not used to modify "punishments" in the 8th Amendment did not exclude the possibility that such a punishment could be "cruel and unusual."

Hamdi v. Rumsfeld, 2004: O'Connor authored the Court's opinion, holding that an American citizen imprisoned in this country as an "enemy combatant"--without charges or a hearing--does have a due process right to receive notice of the Government’s factual assertions and an opportunity to rebut them in a judicial proceeding. The dissenters argued that she was "transmogrifying the Great Writ." But she explained that, in the absence of a valid suspension of habeas corpus by Congress, "it would turn our system of checks and balances on its head" to deny a citizen the right to judicially challenge the basis for his detention government, "simply because the Executive opposes making available such a challenge."

To be sure, Justice O'Connor was not always in the majority. At least two of her dissenting opinions deserve mention as underscoring her wise sense of balance and care about preserving fundamental principles despite competing interests.

Atwater v. Lago Vista, 2001: In a case involving a seat belt violation, the majority held that the 4th Amendment permitted a warrantless arrest for any criminal offense, regardless of how minor, as well as a full custodial search and detention in a jail cell at the police precinct during "processing"--all incident to that arrest. O'Connor was appalled. Noting that the majority itself recognized that the arrest and detention of the driver--a mother with children in the back seat--was a "pointless indignity" serving no legitimate law enforcement interest, she found it incongruous that the majority could nevertheless adopt an unqualified bright line that rendered the "extraordinary intrusion" on a mere seat-belt violator to be constitutionally permissible. As she put it, "the Court's position is inconsistent with the explicit guarantee of the Fourth Amendment" that prohibits searches and seizures that are unreasonable.

Employment Division of Oregon v. Smith, 1990: In a case involving the application of a criminal drug law against the use of peyote by members of a Native American church in an ancient religious ritual, the majority reversed the decision of Oregon's high court which had ruled that a religious exemption was constitutionally required. Writing for the majority to reject any such exemption, Justice Scalia declared that the Supreme Court had "never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law." In her separate concurring opinion--joined in most part by the dissenting Justices--O'Connor comprehensively detailed how Scalia's assertion was simply dishonest and "dramatically departs from well settled First Amendment jurisprudence."

As O'Connor showed, the Court had frequently repeated that only those laws that are "essential to accomplish an overriding governmental interest" could constitutionally burden religious free exercise. Indeed, despite the majority's mischaracterization of such a test as a "constitutional anomaly," she noted that it was actually the "constitutional norm" to protect fundamental rights and prohibit racial discrimination.

Source: Sandra Day O'Connor Institute

Beyond that, she took the majority to task for insisting that an unavoidable and acceptable consequence of democratic government was to "place at a relative disadvantage those religious practices that are not widely engaged in." Citing, among other decisions, Chief Justice Warren Burger's opinion for the Court in Wisconsin v. Yoder (1972), she felt compelled to remind the majority that, "the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups."

[I know I have spent more time on this case than others. But I find Scalia's majority opinion particularly galling in its dishonesty and callous disregard of a minority religion. For like reason, I find Justice O'Connor's separate opinion so imperative. Those who follow the Court's religious liberty jurisprudence know that the Court has done whatever it can to bypass the Smith decision. Several Justices have already made clear that the decision should be "reconsidered." It is almost certain that O'Connor's opinion will eventually be expressly vindicated by the Court.]

This has been a brief survey of some of the most significant and representative opinions of Justice Sandra Day O'Connor. Perhaps more than any other member of the Court over the last few generations, she has been a wise and candid balancer of the strong competing interests at issue in virtually all the cases that reach the Court. And unlike some of her colleagues who have seemed ideologically blind or otherwise uncompromising to disfavored or less-favored interests, or who avow fidelity to some politically induced and supposedly neutral interpretive methodology, she has been motivated by the practical realities and the real-world ramifications of her decisions. That is anathema to some Justices.

"Just apply the law" is a mantra that fails to recognize that there is almost always strong legal support for both sides in appeals at the Court. For Justice O'Connor, the actual consequences from embracing one legally supported position or the other was necessarily a foremost consideration. For that reason, her opinions made sense. Like the very best Justices in the Court's history, wisdom and decency and reality, as opposed to some cramped formalistic legalism, were the hallmarks of O'Connor's jurisprudence.