New York state’s highest court is going to have two openings by the end of the year.
For one of them, Judge Victoria Graffeo could — and should — be reappointed to another 14-year term. But Judge Robert Smith, who reaches 70 this summer, will have to retire.
Smith is one of New York’s — and America’s — greatest judges. He is a veteran lawyer, brilliant, and with a wonderful sense of humor (his son Ben is editor of Buzzfeed). Smith is the kind of judge who would prefer legislatures to make most decisions.
This is the kind of thinking we need on the top court — a judge who understands the idea of limited government. This is the idea that government is one of enumerated and separated powers. It’s the idea behind Judge Robert Smith’s most famous opinion.
That was when he wrote the Court of Appeals opinion on same-sex marriage. The court held that state law did not permit same-sex marriage and the state Constitution did not prohibit it.
It was all up to the Legislature.
Sounds quaint, but it was Smith’s ruling that opened the way for same-sex marriage to be enacted through the democratic process here.
Smith’s opinion drew a contrast with the US Supreme Court case of Loving v. Virginia, which ended the era when states could ban inter-racial marriages. The Court of Appeals in Albany reckoned that bigotry isn’t the only basis on which a legislature could keep same-sex couples from marriage.
But Smith and a majority concluded that the Legislature could go the other way, too. The decision evoked the kind of modesty one rarely hears from a court.
“It is not for us to say whether same-sex marriage is right or wrong,” Smith wrote, adding at one point, “We do not imply that there are no persuasive arguments on the other side.”
It was just up to the Legislature. So Gov. Cuomo campaigned for same-sex marriage. The Legislature passed it. Whether or not one favors it, one cannot say the Legislature was bypassed.
Smith’s retirement leaves the Court of Appeals at a kind of tipping point. Currently it has four judges nominated by former Gov. George Pataki, a Republican. They include Smith, Graffeo, Susan Read and Eugene Pigott.
Judges put on the top court by Democratic governors include the chief judge, Jonathan Lippman, who was appointed by former Gov. David Paterson, and Jenny Rivera and Sheila Abdus-Salaam, named by Cuomo.
That Cuomo will re-appoint Graffeo isn’t certain, of course; she is a Republican, and Cuomo is more likely than most governors to make political calculations in appointing judges. But Graffeo is widely admired on the court. So the big question is really who succeeds Smith.
It happens that there’s a judge who would be perfect to succeed him: Milton Tingling. He sits on the state Supreme Court. He became famous when he ruled that Mayor Bloomberg’s Health Department overstepped its authority when it banned big sugary sodas.
Tingling’s decision that a runaway health department doesn’t have the constitutional authority to just up and ban a 16-ounce cup of sugary soda is a classic case of careful judging. What Tingling did was read every one of the city’s charters going back to the 17th century.
Tingling wanted to see where, if anywhere, the Health Department got the power to regulate sodas. What a quaint notion. Tingling found that the Health Department doesn’t have the power to regulate the size of portions of soda.
That, he wrote, would have to come from a legislature. The Health Department had violated the separation of powers, he wrote.
“Such an evisceration,” he added, “has the potential to be more troubling than sugar sweetened drinks.”
How sweet it would be to have him on the state’s highest court. Between now and the time the vacancy is filled, the Court of Appeals will probably rule on the sugary soda question — that is, on whether Tingling got it right.
Tingling was sustained by the intermediate court. If the top court also sustains him, Tingling would be perfect. If it doesn’t, he’ll be even more needed. Or someone like him.
For New York state, like America, is in what I like to call a “constitutional moment.”
Our politics are divided to a degree that we are looking more and more to the state and federal constitutions that grant our governments their powers. It’s a moment when one doesn’t want to take a top court lightly.