Brian Lehrer: It's The Brian Lehrer Show on WNYC. Good morning again, everyone.

Here in Blue, New York, many people have this concern about how right-wing the United States Supreme Court has gotten. Their values and their view of the law and the constitution seem so out of step with what most New Yorkers believe. At least we have our state courts, including the state's highest court, the Court of Appeals, to protect people's rights as most New Yorkers see them around here.

My next guest is Journalist Sam Mellins from the news organization, New York State Focus, NYS Focus, who has written an article called A New Conservative Majority on New York's Top Court is Upending State Law. Just after this article went to press just a few days ago, a breaking news bombshell hit. Michael was just talking about it in the newscast. The state's chief judge, Janet DiFiore, part of the conservative majority, as Mellins describes them, Chief Judge Janet DiFiore announced she is stepping down. We have revelation from the article, and resignation from the breaking news, from the top court of New York State, which Sam Mellins describes as even more divided than the US Supreme Court. Let's see what this is all about.

Sam, thanks for coming on. Welcome to WNYC.

Sam Mellins: Thanks so much for having me, Brian. It's great to be here.

Brian Lehrer: We'll get to the sudden resignation of the chief judge in a couple of minutes. I know there's a new article on your site exploring the implications of that. Let's start at the beginning, because this is not a topic that many of the listeners pay attention to. There's been something you would call a conservative majority on the New York State Court of Appeals. That is a surprise to many New Yorkers. How many judges is that, and what makes them conservative?

Sam Mellins: The majority is four judges. The Court of Appeals has seven judges, so four is a majority. What makes them a majority, I call them a majority block, is that they vote together in pretty much every single case that comes before the court, or they did this past year. The Court of Appeals ruled on 98 cases over the past year. These four judges, Janet DiFiore, the chief, as well as Michael Garcia, Madeline Singas, and Anthony Cannataro, voted in tandem in 96 of those cases, 96 out of 98 cases. That's what makes them a majority.

What makes them conservative is that their rulings often support goals favored by conservative legal actors, such as expanding the power of law enforcement and police to search New Yorkers, to arrest New Yorkers, to interrogate New Yorkers, preventing criminal defendants from presenting expert testimony, supporting their innocence. Then on the civil side, things like barring workers from suing employers for workplace injuries, or barring consumers from suing companies for defective products, or barring workers from suing their employers if their employers illegally withhold their wages. These are, in general, expanding the power of corporations, expanding the power of law enforcement, are goals favored by conservative political actors, which is why I think it's appropriate to call this block a conservative majority.

Brian Lehrer: We've had Democratic governors who appoint these justices since 2007. How many of these judges you describe in this conservative block were appointed by these Democratic governors, Spitzer, Patterson, Cuomo, and Hochul?

Sam Mellins: All four of the judges in the conservative block were appointed by Governor Cuomo. In fact, six of the judges on the court were appointed by Governor Cuomo. One was appointed by Governor Hochul. I think it's worth saying that until 2019, the State Senate, which confirms appointments, was controlled by Republicans. The Chief, Janet DiFiore, and Judge Michael Garcia were both confirmed by our Republican-controlled Senate.

However, that's not true of the other two judges, Madeline Singas and Anthony Cannataro. They were confirmed not only by a democratic-controlled Senate, but by a democratic super majority Senate. When they were nominated by Governor Cuomo just months before he resigned, there was a sustained effort by legal advocates and criminal justice reform advocates to block the confirmation of Judge Madeline Singas, who was then Nassau County DA, where she had adopted very tough on crime pro incarceration policies. These advocates, and some progressive senators, warned that if she was confirmed to the court, she would be a conservative force and accentuate the conservative tendencies of the chief and Judge Garcia. They persuaded 10 Democratic senators to vote against her, but that wasn't enough to stop the nomination, and she received many more votes in support even from Democrats than she did against.

Brian Lehrer: Interesting. I see, from the new article on your site this morning, that the deputy majority leader of the Senate, Michael Janarus, a Democrat who's considered a leader of the progressive block in the State Senate, told you that he regrets supporting and voting for Judge Madeline Singar's confirmation to the court last year. How do they get people like Michael Janarus to go along if she had this conservative history as Nassau County DA.

Sam Mellins: It's a good question. I think in the case of Janarus, he and Judge Singas have a long history. They've been friends for a long time, or at least political allies for a long time. They're both from the Greek community of Queens. I think that was one of the things that led Janarus, not only to vote for Singas, but to rally his colleagues in support of her nomination, even as her opponents were asking him to take a stand against her.

I think just in general, the Court of Appeals nominations have not been highly contentious, and the Senate is used to that posture. The Senate has actually never rejected a governor's nominee to the Court of Appeals. I think before the recent string of highly conservative rulings from the US Supreme Court, the issue of conservative courts was less on the mind of people who aren't avid court watchers. I think Cuomo, he was very good at persuading and brow beating and bullying other actors in state government to go along with his wishes.

Brian Lehrer: Why would Cuomo have wanted it?

Sam Mellins: Obviously not all that takes place in public view, but some of that was active here as well.

Brian Lehrer: Sure. Why would Cuomo have wanted conservative judges?

Sam Mellins: I think the truth about Cuomo is that he was as they come, in significant ways. He was a relatively conservative Democrat who pursued things like cuts to the state's Medicaid program, which provides health insurance for low-income New Yorkers. I think also during Cuomo's tenure, especially during the last few years, the state legislature got much more liberal, and many more progressive members were elected. I think that worried Cuomo. I think he worried that he would be forced to the left in ways that he didn't want to be by the legislature, and sought to turn the court of appeals into a sort of counterweight to the left word movement of the legislature.

Brian Lehrer: Although interesting, and this may or may not matter really to the heart of the conversation we're having, but there's conservative and there's conservative. The big things that we're focusing on the US Supreme Court for changing recently are things that Cuomo in office had been somewhat of a liberal champion on. The abortion rights issue. People may disagree how much he was a champion, but he was in favor of basically codifying Roe for New York state. Guns, he got through that big gun control package after the new town shooting a decade ago. The environment, he banned fracking in New York State. The EPA had its hands tied by the US Supreme Court in one of these big decisions in the last few weeks.

These big things that we are looking at right now with respect to the US Supreme Court, Cuomo was pretty progressive on. Would it be fair to say that the judges that he appointed would not be the conservatives who would overturn Roe or strike down New York's gun laws or something like that?

Sam Mellins: I think that would be fair to say. With regards to the new gun laws, we'll have to see what they do if it comes before them. I certainly would not say that Janet DiFiore sees eye to eye with Clarence Thomas. I think that would be inaccurate to say. I think, especially on social issues, the Court of Appeals hasn't really given any indication that they intend to move on in a conservative direction on things like abortion, or things like the right to contraception or gay marriage. I don't think they see that as part of their mission.

Brian Lehrer: Listeners, we have a few minutes yet with Sam Mellins from New York State Focus. Who has a question or stories about the highest court in New York state, and Sam's article in the New York State Focus on that website about it, having a conservative majority that rivals the US Supreme Court for how it's upending state law? Any lawyers listening who have argued before the Court of Appeals, or anyone else? 212-433-WNYC, 212-433-9692, as he describes a conservative majority on a range of issues, maybe not like the ones we just mentioned, but on things like labor rates, police power, and the rights of criminal defendants. Anybody with any experience about this as a plaintiff, as a defendant, as a lawyer, anything relevant? 212-433-WNYC, 212-433-9692, or tweet @BrianLehrer.

Meanwhile, your article came out last Thursday. Then yesterday, the leader of this conservative wing, the state's chief judge, in fact, Janet DiFiore, announced her resignation.

Sam, did you cause this?

Sam Mellins: I do not think so, but I think you should have her on the show and ask her, because I think this announcement really stunned a lot of people, including some of the state senators I spoke with yesterday, certainly including me, and I would love to know what caused it.

Brian Lehrer: By the way, let me correct my misstatement of the name of your news organization. I'm looking at the website, the URL, which led me to believe it's New York State Focus, but it's just called New York Focus, that's how people can find it, right? Search New York Focus and it'll come up.

Sam Mellins: That's it, nysfocus.com. The name of the publication is New York Focus.

Brian Lehrer: Got it. Why did Judge DiFiore, the state's top judge, suddenly resign?

Sam Mellins: I think it's really the million-dollar question about this issue. New York requires judges to resign the year that they turn 70, which for her would have been 2025. It seemed like she had reached a sort of apogee of her power with this consistent block that she could use to reach rulings that she favored. To walk away from that and give Governor Hochul the chance to reshape the court really does seem like a mysterious decision.

It's worth mentioning that she's currently under an ethics investigation for interfering in the disciplinary hearing of a court officer, that may have had something to do with it, maybe with what she has said that there'll be a future chapter in her professional career. Maybe once we see what that is, we'll understand better why she resigned from the court, but for now, it really is something of a mystery.

Brian Lehrer: I see now that that seat is open, multiple senators, including the deputy majority leader, Michael Gianaris, who we referred to before, is having regrets for voting for the confirmation of another judge on this conservative block. He and others are calling on Governor Hochul to nominate a replacement that will shift the conservative direction of the court. I see that Progressive State Senator Alessandra Biaggi is asking the governor to appoint a public defender, for example.

Sam Mellins: Yes, that's right. I think a lot, particularly with the direction of the US Supreme Court, and as people have become more aware of the conservatism of the Court of Appeals, a lot of legislators really would like to see this direction change because, frankly, it's not the politics that they believe in. They're worried that their own legislation is going to be struck down by this conservative court.

Mostly, so far these calls have been coming from senators with a reputation as progressives, but even the Speaker of the State Assembly, Carl Heastie, who is not known as a progressive, he's known as more of a moderate force, called on Governor Hochul to appoint a progressive replacement for DiFiore. Now, Heastie doesn't have a vote in the matter because he's in the assembly, not the Senate, but he's still an influential figure as the speaker, of course.

Brian Lehrer: Robin Brooklyn, you're on WNYC. Hi, Rob.

Robin Brooklyn: Hi, how's it going? I was just calling about a specific case that I was aware which made it's way to the court and I was wondering what ramifications you think would have. The Tax Equity now New York lawsuit filed against the improper taxation of lower-income families in New York has been granted their appeal. Do you think this will make its way and have a larger impact on how the courts are handling this case?

Brian Lehrer: Sam, are you familiar with the case?

Sam Mellins: Rob, thank you for the question. To be honest with you, I am not familiar with this case.

Brian Lehrer: Rob, it does sound intriguing, and to be honest with you, I'm not familiar with the case either. You want to tell us the premise? What's the argument that, if I understand you correctly, low-income New Yorkers are being discriminated against in the way they're taxed? Rob, you're there?

Robin Brooklyn: Yes. Sorry, I'm driving on the SGR. Can you hear me?

Brian Lehrer: Yes, we got you. Go ahead. Give it a shot.

Robin Brooklyn: Apologies. Homes in East New York and Brownsville tend to have a five times higher effective property tax rate than homes and neighborhoods like Park Slope, and Cobble Hill, Carroll Gardens, to the tune that the estimate in the lawsuit about a billion dollars is transferred in wealth every single year between lower-income families and those with more means.

There's still a lot of really good reporting out of Bloomberg on this from Jason Grotto, who's covered it extensively, but the length of it would be that if you live in East New York in a small single-family home, you pay more in taxes than the mayor or the previous mayor did, Bill de Blasio, on his Park Slope house. The lawsuit seeks to overturn and write those tax inequities, and hopefully, second straight so that people who live in lower-income families aren't shouldered more of the burden than those who pay less [unintelligible 00:15:38].

Brian Lehrer: Right, very interesting. Thank you for laying that out for us, Rob.

One thing that DiFiore leaves behind as she steps down, we have the very consequential ruling just this year that struck down the congressional districts and the state senate districts that the legislature had drawn as too gerrymandered to favor Democrats too much. That could actually hand control of Congress to the Republicans if it's close to this November because the top courts in Republican-led states are not striking down their partisan gerrymandering at the same rate. I'm curious, Sam, how you see that ruling in the context of your article, and Janet DiFiore's legacy.

Sam Mellins: Well, it's the same senators whose districts that DiFiore and her colleagues struck down who will be voting on her replacement, so I think certainly because of that ruling, many of those senators were not sorry to see her go. Hakeem Jeffries, New York congressman, issued a two-word statement on her resignation, which was "good riddance".

Absolutely, if control of the House comes down to a few seats in this November's elections, and Republicans gain a narrow majority, it could be DiFiore and her colleagues, most of whom are Democrats who are responsible for a Republican majority in the House and potentially making Kevin McCarthy Speaker of the House.

I think that did not engender a lot of goodwill towards her and her colleagues among New York's democratic political establishment.

Brian Lehrer: Debbie in Brooklyn, you're on WNYC. Hi, Debbie.

Debbie: Hi, Brian. I just wanted to say that DiFiore leaving the court is honestly welcome news for a lot of the court employees, I would say, because I heard it mentioned that she's got an investigation for something with a disciplinary proceeding. That's not the interfering, but just an inability to work with her staff, with the workers, with the people who run the system. It's been par for the courts for some time now, so hopefully we'll get someone who can work with the unions, work with the employees, and help bring morale back.

Brian Lehrer: Interesting, Debbie. Thank you very much. That's a report from within, apparently, Sam, that morale at the Court of Appeals staff level was not good under DiFiore.

Sam Mellins: Yes, it's very interesting. This is a good moment to mention that in addition to heading the state's top court, the Chief Judge of the Court of Appeals also heads the administration of the entire New York court system, which consists of hundreds of local and lower courts, and thousands of employees, and has a budget of almost $3 billion. That's really a second full job that's hugely consequential that DiFiore's replacement will be in charge of, so that only adds to the stakes of this next appointment.

Brian Lehrer: Brian in Harlem, you're on WNYC. Hi, Brian.

Brian: Hi, how're you doing? I wanted to ask about the cases that the Court of Appeals does not take, because I understand like 95% of the cases they don't take, and I was in one of those cases. It involves my pension, and it involves, what should I call it? Involved sole testimony and doctored documents, like people from the New York City DOE. I'm not going to get in all the details, although I am DMing Sam on Twitter now [crosstalk]

What about the cases they don't take? What does that show? In my case, it shows that they weren't worried about protecting people's pension rights, at least from my opinion.

Sam Mellins: Yes, Brian, that's a great question. Thank you for asking. The court under DiFiore has had what Professor Vincent Bonventre at Albany Law School, who's an expert in the court calls "the incredible shrinking docket" which means that the court itself is largely in charge of which cases they do and don't take, much like the US Supreme Court is, and under DiFiore, they've chosen to take many fewer cases. They've shrunk their docket in half and more relative to the previous Chief Judge Jonathan Lippman. Understandably, many litigants, people with cases that they'd like to have heard by the Court of Appeals, criminal defendants who want to argue their innocence before the court, lawyers are very upset about this, and say that they're making the job too easy on themselves by not taking as many cases as they traditionally have, and they're not fulfilling the responsibility to New Yorkers.

I think a chief judge who will expand the number of cases that the court hears, is something that a lot of people who deal with the court would very much like to see.

Brian Lehrer: That's so interesting. Brian in Harlem, thanks for bringing that up.

Last thing, and it comes back to State Senator Biaggi's call for Hochul to appoint a public defender to this opening on the court, we'll remember that part of the background, that that is part of the background that makes the new US Supreme Court Justice Ketanji Brown Jackson so different. She's been a public defender.

Are there any public defenders on the New York State Court of Appeals now?

Sam Mellins: No, there are no judges on the Court of Appeals currently who have a significant background in public defense or civil rights law. There are, however, four judges, the Chief Judge Michael Garcia, Judge Shirley Troutman, and Judge Madeline Singas, who have a significant background as prosecutors, serving as district attorneys, federal prosecutors, and the like. A lot of people who are active in criminal defense, and some politicians such as Senator Biaggi have said, "We have enough prosecutors on the court, it's time for a public defender."

Brian Lehrer: We will see if Governor Hochul makes a time for a public defender. We thank Sam Mellins from New York Focus for filling people in. It's really good that you're on this, Sam, because it's so consequential to so many people, and to some of the issues that you've raised in the people effective in the areas of police powers, worker rights, income inequality, and tax inequality issues, that one of the call arrays.

The New York State Court of Appeals, probably like a lot of state courts and a lot of states, just don't get the focus that the US Supreme Court and the federal court system in general get consequential as they are, and surprising to people, I think, in New York, how relatively conservative this New York State Court of Appeals has been with its Cuomo appointees.

Thanks so much for joining us.

Sam Mellins: Thank you so much, Brian. The site, just one more time, is nysfocus.com.

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