VOICES OF SANITY FADE FROM NY COURT
AS New York hurtles toward an allDemocratic Court of Appeals — a bench of last resort without a single conservative — let’s tip our hat to Judge Susan Read. She’s the nexttolast Republican on the court, and she’s set to retire next month.
The other Republican, Eugene Pigott, has to retire by the end of 2016, because he turns 70 that year.
Unless Gov. Cuomo does something surprising (he hasn’t yet), we’ll then be in for a span of unrelieved liberal orthodoxy on the state’s highest bench.
No doubt there are those who ask what difference it’ll make, since the court conservatives were so often outvoted and had to make do with dissenting opinions. But skilled dissenting judges can lay down important markers for the future.
Three Republican judges were the only dissenters in the case that in 2004 effectively ended capital punishment in the Empire State. The majority spared the life of the man who raped and murdered Cynthia Quinn (he stabbed her 73 times) on the grounds that the law set up prejudicial jury instructions.
A more modest majority could’ve ruled on only that particular killer’s jury. But it lacked restraint and effectively blocked the use of capital punishment. So New York is without this basic tool of justice as our murder rate is starting to lurch back up.
The institution that ought to worry about this is the Legislature. This came across in Read’s dissent against a majority that in 2009 denied the corporate owners of Peter Cooper Village and Stuyvesant Town access to certain luxury decontrol provisions of the rentstabilization law.
Read marveled at the ability of the majority to rule that the Legislature hadn’t meant what it plainly said when it wrote the luxury-decontrol provisions. Too bad she couldn’t have sat in for Chief Justice John Roberts of the US Supreme Court in the big case about the plain language of ObamaCare.
Read’s most famous dissent came in the Campaign for Fiscal Equity case that, in 2003, forced a vast expansion of education spending that the taxpayers didn’t want. The court’s decision forced taxpayers to spend billions of additional dollars on failing schools.
CFE was the case in which the Court of Appeals dressed up one of its earlier opinions claiming the state’s Constitution guarantees to every student the chance for a “sound basic education.” In CFE, the court came up with the idea that this meant students had to function productively — or it’s government’s fault.
Read’s dissent — the only one in the case — is a model of the kind of plainlanguage constitutional craftsmanship New York desperately needs.
The judge cut through all the bilge put out by the majority.
The case, she insisted, was not about whether education is important, or whether students need an eighthgrade education in order to meet the demands of life in New York.
Rather, Read wrote, the case was about whether the shortcomings in the public schools were “constitutional infirmities” attributable to inadequate state funding. And about whether “the courts or the legislature and the executive should set education policy.”
Read debunked the business about a “sound basic education” by noting that our state Constitution “does not mandate an educational system of a certain quality in express terms.” It simply says the Legislature shall provide “a system of free common schools.”
The sound basic education malarkey turns out to be a confection of the courts.
A judge doesn’t have to be a Republican in order to write conservative decisions.
New Yorkers learned this when a lower court judge, Milton Tingling, put the kibosh on Mayor Bloomberg’s scheme to regulate the sale of large sugary soft drinks — ruling that the health department lacked authority.
And when the matter got to the Court of Appeals, Judge Read surprised everyone and voted with the left wing. Which goes to prove another thing to keep in mind about judges, no matter their party: None of them is perfect.