Academic journal article Albany Law Review

Pennsylvania Supreme Court: The More Things Change, the More They Stay the Same

Academic journal article Albany Law Review

Pennsylvania Supreme Court: The More Things Change, the More They Stay the Same

Article excerpt

I. INTRODUCTION

The Pennsylvania Supreme Court turned Republican in 2002. When former Chief Justice John P. Flaherty (D) retired at the end of 2001 and Justice J. Michael Eakin (R) was elected to replace him, the court saw its first Republican majority in three decades. (1) The question of the day was this: would Justice Eakin and the new Republican majority "swing the now-moderate court in a more conservative direction?" (2) This question reflects common partisan stereotypes, which in the context of an appellate court amount to this: Democratic justices are bound to be "liberal," to interpret a constitution as giving broad protection to individuals, and to vote frequently against the prosecution in criminal appeals; Republican justices are bound to be "conservative," to interpret constitutional protections more narrowly, and to vote frequently in favor of the prosecution in criminal appeals. In order to avoid broad stereotypes that may not strictly hold, this study reframes the previous question thus: What effect did the election of Justice Eakin and the resulting Republican majority have on the percentage of criminal appeals decided in favor of the prosecution? This question will be discussed and answered in Part IV.

Two more questions remain to be asked and answered. The Republicans still held a 4-3 majority on the court in 2006, but the winds of change are blowing. The now-empty seat of the recently-retired Justice Sandra Schultz Newman (R) must be filled in Pennsylvania's fall 2007 judicial election. (3) The seat of Justice Cynthia Baldwin (D), a temporary replacement for the ousted Russell M. Nigro, must also be filled. (4) Also in 2007, Justice Thomas G. Saylor (R) faces a retention vote, the results of which are far from certain. (5) It is quite possible that the Democrats could regain a majority on the court as early as 2008. If that were to happen, what would likely be the effect on the percentage of criminal appeals decided in favor of the prosecution? This question will be discussed and answered in Part V.

Laying a foundation for the third and final question requires revealing the answers to the first two questions; if the reader does not want to spoil the surprise, now would be a good time to skip ahead to the next paragraph. In a nutshell, the Pennsylvania Supreme Court since 2001 has consistently decided in favor of the prosecution at a rate of about 75%, even in 2001 under the so-called "moderate" court of former Chief Justice Flaherty. And the court will likely continue to decide in favor of the prosecution at a similar rate even if the Democrats regain a majority of seats on the bench. In light of these conditions, how can a defense attorney possibly beat the odds and improve his or her chances of winning a criminal appeal? This question will be discussed and answered in Part VI.

Part II describes the general methodology employed in this study, the scope of the study, and some limitations to keep in mind while considering the analyses presented herein. Part III presents background information about the court. Part VII concludes the study. Appendix A contains tables relevant to the study and Appendix B contains interesting information not essential to the main part of the study.

II. GENERAL METHODOLOGY, SCOPE, AND LIMITATIONS

Answering any of the questions outlined above requires knowing the voting tendencies of each individual justice on the court. Does Justice X tend to vote in favor of the prosecution more often than for the defense? If so, how much more often? Which justices seem to influence their peers more than others? Who is really driving this ship?

On a more practical level, how can one discover the true voting tendencies of any given justice? This study's methodology flows from one basic premise: separate opinions, i.e., dissents and concurrences, provide much greater insight into the mind of a justice than unanimous opinions provide. …

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