With the repeal of Roe v. Wade, more and more Democrats have begun to view the Supreme Court as illegitimate. Many liberal New Yorkers hope President Biden and the Senate can somehow expand the Court or radically reimagine it in other ways. Such a plan is years from being realized, though, and the 6-3 conservative majority is going nowhere anytime soon. For now, furious activists would be better off directing their energy elsewhere. The good news is that a rare opportunity to shape a different high court emerged on Monday with the news that New York’s most powerful judge is stepping down.
Janet DiFiore announced today that she would be cutting short her term and retiring at the end of August. DiFiore, the chief judge of the Court of Appeals, the confusingly named highest court in the state, has held her powerful post since 2016, quietly presiding over a conservative majority. There are seven judges on the Court of Appeals instead of nine; all have fixed 14-year terms and mandatory retirement ages. DiFiore, who oversaw the state’s entire court system, had the ability to serve through 2025. Her early exit creates a rare opportunity for progressives to take control of the court, and change the direction of jurisprudence in New York.
The decisions the Court of Appeals hands down have a direct effect on New York State residents. Just weeks ago, DiFiore authored the majority opinion invalidating the Democrat-drawn district lines for House and State Senate seats — a decision that put the Court on some people’s radar for the first time.
But that was hardly the first time DiFiore’s 4-3 conservative majority, which ruled together on 96 of 98 cases last term, has scuttled the hopes of liberals. The court has wielded its power to stop criminal defendants from presenting expert testimony supporting their innocence and bar workers from suing employers for workplace injuries and to make it much harder for victims of police misconduct to sue for damages.
In 2018, the court ruled that if a defendant pleads guilty, they can never get their conviction vacated later, no matter how much evidence is presented to prove their innocence. (The court, for reasons unclear, did not consider the growing body of evidence concerning false confessions.) A year later, the court held that if police spot a person drinking something from a paper bag and the person flees, cops are allowed to chase down and apprehend them. In 2020, DiFiore’s court ruled that rent-controlled tenants who had been illegally overcharged by landlords could not collect rent claims retroactively.
How did a high court in a state dominated by Democrats get this way? Look to disgraced former governor Andrew Cuomo. Cuomo appointed DiFiore, a former Republican district attorney in Westchester whom he had been chummy with for years — she was close enough to him to surreptitiously receive priority COVID testing in the early days of the pandemic. When Cuomo first faced down allegations of sexual harassment and misconduct, he hoped to have DiFiore oversee the review of the cases. State Attorney General Letitia James shot down the idea.
Cuomo, ever the centrist, installed all four of the conservative judges on the Appeals Court and six altogether. Last year, not long before he resigned, he nominated Madeline Singas, a moderate-to-conservative Democrat, and the State Senate confirmed her over the objections of some progressives. The appointment process for a Court of Appeals judge is similar to that of the Supreme Court, with the executive nominating the judge and the upper chamber voting to confirm. Unlike in Washington, Democrats hold a supermajority in the Senate. And progressives control enough of a voting bloc that if they hold firm, they can determine the outcome of a nomination.
Progressive Democrats in the State Senate can force Hochul to nominate a new chief judge with a much more liberal voting record than DiFiore. For that to happen, outside activists must engage much more aggressively in the process than they have in the past. Cuomo was able to appoint conservatives because many nonprofit organizations, elected officials, and activist groups were focused elsewhere. The Court of Appeals has never been a cause; even politically astute voters are only dimly aware of what the court does. That has now changed. The next few weeks will be pivotal, as Hochul weighs her options and grassroots Democrats figure out how exactly they should mobilize for change. Unlike the fight in Washington, this is one they can win soon.
