Conservatism in the Second Circuit: An Analysis of the Dissenting Opinions of Judge Debra Livingston and Judge Reena Raggi
Tedesco, Michael C., Albany Law Review
Since their inception, the courts in the United States have been bestowed vast power, capable of affecting the lives of citizens across the country. (1) "American courts ... do not simply 'announce' the law; as much as any other set of institutions, they make policy." (2) Throughout this country's history, "the [courts have] become actively engaged in, among other things, the regulation of abortion, development of police procedures, ... and even the determination of the 2000 presidential election." (3) Sitting at the center of every conceivable public and private dispute, judges create precedent each and every day that is binding on the judiciary and citizens of future generations. Suffice it to say, members of the judiciary have an immense amount of power. As such, the nature of the judicial position requires judges to leave their political ideologies at the door and view each case through a lens of objectivity and fairness. The practice of adhering to objective reasoning is most important for judges who serve on the bench of a federal appellate court, as these courts provide guidance to lower courts and are often a court of last resort absent a grant of certiorari from the United States Supreme Court. With that in mind, there has been a notion that judges should think independently and base their decisions on what they objectively believe to be the correct result under the law. Despite this maxim, there is an ever-growing body of evidence that suggests a judge's ideology plays an important role in the judge's decision-making. For instance, the media, along with many scholars, have been grouping justices of the United States Supreme Court into "liberal" and "conservative" blocks when analyzing high profile cases in an effort to predict voting patterns and an eventual outcome. (4) Even the method by which some justices employ their clerks is indicative of the pervasiveness of ideological stances in the judicial arena. (5) Despite the flood of research devoted to the link between ideology and Supreme Court jurisprudence, judicial scholarship seems to be devoid of similar studies focused on circuit court judges. Accordingly, this study focuses on two judges currently sitting on the bench of the United States Court of Appeals for the Second Circuit: Judges Debra A. Livingston and Reena Raggi.
The purpose of a high court study is "to discern possible jurisprudential, ideological, sociological, or other patterns and common threads in the court's ... decisions, as well as in the opinions and voting records of the court's individual members." (6) The main purpose of this particular high court study is to create a profile outlining the ideology and voting trends of Judges Debra A. Livingston and Reena Raggi of the United States Court of Appeals for the Second Circuit through an analysis of the judges' decisions over the past five years. (7) This is accomplished through an examination of the nonunanimous opinions in which the judges participated over the past five years, with an exclusive focus on their dissenting opinions. The decision to use exclusively dissenting opinions in this study is because, unlike nonunanimous decisions, unanimous decisions "tell nothing of the conflicts around the judicial conference table, the alternative lines of argument developed, [and] the accommodations and the compromises which went into the final result." (8) Thus, a great deal of useful information can be gleaned from reviewing nonunanimous decisions of a court, as judges often convey their reasons for voting in a particular manner and their personal predilections for the matter at issue. Further, nonunanimous opinions "supply information about [judge's] attitudes and their values which is available in no other way." (8) Moreover, the dissent of a judge can be very important for a study like this. Although it holds no precedent and is completely useless as legal authority, (10) a dissent can prove particularly revealing because it is the mechanism by which the dissenter informs the majority that they reached the wrong result and the reasoning as to why; (11) it is the dissenter's only chance to make his or her views public, and perhaps undermine the court's majority in the process. …