New York State: Steering a Course between the Scylla of Judicial Activism and the Charybdis of Wayward Legislating – But for How Long?

Abstract

This paper examines the jurisprudence of the New York Court of Appeals – the State's highest court – with regard to life issues: abortion, assisted suicide, the death penalty, cloning, healthcare rights of conscience, etc. It reviews the record of various judges of the Court of Appeals, concluding that the activist reputation the Court gained in past decades is no longer quite so warranted. As a general matter, the court's opinions tend to be well-reasoned and deferential to the legislature, though there is also a strong liberal bent to certain of the judge's opinions, particularly with regard to end-of-life and other contentious social issues.The article summarizes the court's views towards judicial restraint vs. judicial activism, examines the views of former Chief Judge Judith Kaye toward interpreting the New York State Constitution as a stand-alone document distinct from the federal Constitution, and concludes with a summary of the judges sitting as of 2007.