How undemocratic is New York State government? Consider: as Peter Reinharz reports (“The Court Criminals Love,” City Journal, Winter 1996), the Court of Appeals, the state’s highest tribunal, has extended protections to criminal defendants far beyond those the U.S. Supreme Court has recognized, paralyzing law enforcement and endangering ordinary citizens. Not only did New Yorkers never vote to approve such protections, but the language in the State Constitution on which the court bases its rulings is exactly the same as the Fourth Amendment of the U.S. Constitution, which guides the High Court in Washington.

Now Governor Pataki has proposed a legislative check on the court's judicial activism. The Police and Public Protection Act of 1996 would mandate that the Court of Appeals follow U.S. Supreme Court precedents in search-and-seizure cases. But this sensible reform may end up going nowhere, for it has to get past the State Assembly, where the views of the left-wing Legal Aid Society frequently hold sway. (See “The Legal Aid Society Follies,” City Journal, Autumn 1995.) And even if the act becomes law, legal scholars have warned that the Court of Appeals—the very court it is designed to regulate-is likely to overturn it.

In response to Pataki's proposal and his criticism of the Court of Appeals, Associate Judge Vito Titone, who has led 2 the court's rejection of U.S. Supreme Court standards, lashed out. “I defend my right to decide a case without fear of rotten tomatoes and eggs being thrown at me,” Titone said. “Don’t make every judge look over his shoulder after every decision. Don’t make him ask, ‘What did I do this time?’” Titone’s discomfort isn’t surprising. Judges are accustomed to enjoying the adulation of their peers as they extend new legal rights, without being held accountable to the public who must bear the brunt of those rights. Even if the governor’s proposal proves doomed, he deserves credit for casting sunlight on an institution whose decisions have too often made New York a more dangerous place to live.


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