A New Conservative Majority on New York’s Top Court is Upending State Law
Governor Kathy Hochul delivers remarks at the Court of Appeals in April | Mike Groll/Office of Governor Kathy Hochul
A new four-judge bloc has consistently voted together in its most recent term, impacting criminal defendants, workers and people suing police.
by Sam Mellins
This story was published in partnership with City & State.
Janet DiFiore. Anthony Cannataro. Michael Garcia. Madeline Singas.
Most New Yorkers have never heard these names. But these four judges form a controlling majority of New York state’s highest court. They always rule in lockstep. They often barely explain their decisions. And as the U.S. Supreme Court upends federal constitutional law, these judges too are issuing a slew of decisions pushing New York law to the right.
The Court of Appeals ruled on 98 cases in its most recent term, which ended last month. DiFiore, Cannataro, Garcia and Singas voted in tandem in 96 of those cases. On the seven-member court, a bloc of four that sticks together can dictate the outcome of every case.
In the past year, these four judges have used their power to prevent criminal defendants from presenting expert testimony supporting their innocence, bar workers from suing employers for workplace injuries, and make it harder for victims of police misconduct to sue for damages, among other rulings. All of them were nominated by former Gov. Andrew Cuomo and confirmed by the state Senate.
Echoing recent rulings from the U.S. Supreme Court’s new conservative supermajority, Chief Judge DiFiore and her new bloc of associates are making New York law more friendly to law enforcement and powerful economic actors.
Conservative leanings
DiFiore, a former Republican, and Garcia, a Republican, have been conservative forces on the court since they joined it in 2016. But until last year, they didn’t have consistent ideological allies on the bench.
That changed when Judges Madeline Singas and Anthony Cannataro joined the court in 2021, after being nominated by Cuomo just months before his resignation. They were confirmed by the state Senate after the failure of an effort by progressive senators to block Singas’ confirmation. In their first full term on the court, Singas and Cannataro teamed up with DiFiore and Garcia to form a conservative majority that absent death, resignation, or impeachment will last until at least 2025, when DiFiore will reach New York judges’ mandatory retirement age of 70.
A solid bloc like this is unusual for the Court of Appeals. Historically and even in the relatively recent past, the court hasn’t been polarized along ideological lines.
“The judges who retired in the past several years tended to be the swing judges, and they’ve been replaced with judges who instead have a more consistent voting pattern,” said Sam Feldman, an appellate public defender. The Court of Appeals, Feldman added, “has come to look more like the U.S. Supreme Court does these days, with a very consistent identifiable majority bloc.”
In fact, the consistency of the Court of Appeals’ conservative bloc exceeds even that of the U.S. Supreme Court, where all six members of the Supreme Court’s conservative supermajority sometimes find themselves in dissent from the majority opinion.
Judge Shirley Troutman, who joined the court early this year after being nominated by Gov. Kathy Hochul, is the court’s closest thing to a swing vote. Sometimes Troutman sides with the conservative bloc, and sometimes with Judges Jenny Rivera and Rowan Wilson, the court’s two liberals, both Cuomo nominees. But since the four judges in the conservative bloc already form a majority, Troutman’s vote generally doesn’t affect the outcome of cases.
Singas and Cannataro had close relationships with DiFiore before they joined the court. When DiFiore was confirmed to the Court of Appeals in 2016, Singas, then the district attorney of Nassau County, called her a “friend” and a “trusted mentor.” And before Cannataro joined the court, he was the chief administrative judge of New York City civil courts, working under DiFiore, who is also the chief administrator of the New York state court system.
Though she is a Democrat, Singas’ conservative leanings are not surprising to some observers, since prior to joining the Court of Appeals, she promoted tough-on-crime policies and opposed criminal justice reforms as Nassau County’s district attorney.
Before DiFiore became chief judge, the court had a reputation for favoring expansive readings of the constitutional rights of criminal defendants, protecting and affirming the rights of New Yorkers beyond those guaranteed at the federal level, especially in the areas of limiting police power and safeguarding the rights of the accused. These decisions included tightening restrictions on how police could gather evidence and requiring courts to inform noncitizens if pleading guilty could expose them to risk of being deported.
The current court has reversed that tendency, just as the U.S. Supreme Court has moved aggressively to deny defendants the ability to seek redress when they believe their rights have been violated by law enforcement.
“New York and California were supposed to be the bulwark against the federal courts getting more conservative. And I don’t think anybody’s looking to the New York courts in that way now,” said Steve Zeidman, professor at the City University of New York School of Law.
A Court of Appeals spokesperson did not respond to a request for comment by publication.
Short opinions, lengthy dissents
Despite its success in controlling the outcomes of the Court of Appeals’ entire docket, the conservative bloc appears uninterested in explaining many of its decisions. The court issued opinions in fewer than half of the cases it decided this year. The four justices who form the court’s majority only wrote 30 opinions combined. Cannataro wrote four total.
Most of the court’s decisions were issued in the form of memorandums – brief explanations of the majority’s view of the case, not signed by any particular judge.
Wilson and Rivera also wrote few opinions this term: only three each for Wilson and Rivera. But that’s largely because they so often dissented: Wilson wrote twelve dissenting opinions, and Rivera wrote ten.
In recent years, legal experts have critiqued the Court’s use of memorandum opinions. Vincent Bonventre, a professor at Albany Law School who is an expert on the Court of Appeals, said that the court’s unsigned memos “might tend to be less carefully considered and crafted than those that are signed.”
The court’s critics accuse it of being more interested in reaching its desired outcomes than doing the work to justify them. Writing brief memorandums is “much less work,” said Noah Rosenblum, an assistant professor at New York University School of Law who clerked for Rivera at the Court of Appeals from 2017 to 2018. “It’s almost like the judges of the new majority bloc don’t actually want to do the work of being judges.”
These brief opinions can leave important points in the law vague, Rosenblum told New York Focus and City & State. “If the majority issues short opinions that do not actually explain the criminal law, it is shirking its responsibility for elaborating the criminal law in a thoughtful way that can serve to guide lower court judges and future litigants,” he said.
In October 2021, the court found that a police officer was within his rights to have a sniffer dog search a man’s trunk during a routine traffic stop without the man’s consent. The entire judgment of the five-judge majority took up less than 400 words. Wilson, writing for a two-judge minority that believed the search was illegal, wrote nearly 5,000 words.
Wilson and Rivera’s choice to write such extensive dissents may be a form of playing the long game, some legal observers have suggested. If the court’s composition shifts leftward in the future, these dissents could offer a roadmap for how a more progressive court could approach interpreting New York law.
Dissents can also serve as a signal to the Legislature that it should consider passing laws overruling the court’s decisions. In a 2018 dissent from a ruling that weakened a landmark anti-fraud law, Rivera called on the Legislature to overturn the majority’s decision. In 2019, the Legislature passed a law based on Rivera’s interpretation, effectively overruling the court.
Along with favoring short opinions, the Court of Appeals is also choosing to hear fewer cases. In 2013, under previous Chief Judge Jonathan Lippman, the Court heard 259 cases—more than twice as many as in their recently concluded term.
Court watchers attribute the decline to DiFiore, who early in her tenure urged state judges to reduce the number of criminal cases that reached the Court of Appeals. This directive ruffled the feathers of some litigators and lower court judges, who say that the lower-level courts look to the Court of Appeals for guidance, and that more defendants should get to argue their innocence before the state’s highest court.
Expanding police power
Nearly half of the court’s cases in its last term were criminal cases. In three quarters of them, it ruled in favor of the prosecution.