Judith Smith Kaye

This biography was prepared in 2007, and does not include Judge Kaye’s retirement or life after leaving the bench. In 2011, the Society collected her oral history. For more information on Judge Kaye’s life after the Court of Appeals, view her Oral History.

In 2009, the Society produced a video of personal recollections in honor of Judge Kaye upon her retirement from the bench of the Court of Appeals. That video can be viewed HERE.

 

Introduction

She initially rose to prominence simply as the first woman ever to be appointed to the New York Court of Appeals. As the years passed, however, it was widely recognized that Judith Smith Kaye was one of the preeminent jurists in the country, regardless of gender. But perhaps her most lasting legacy will be the fruits of her term as Chief Judge, a position in which she has served longer than any of her 21 predecessors. In that capacity, Chief Judge Judith Kaye has overlaid nearly a decade-and-a-half of forward-looking leadership and nationally acclaimed judicial innovation upon her more than two decades of service and unquestionable prowess as an appellate judge.

The Path to Judicial Service

Judith Ann Smith was born on August 4, 1938 in Monticello, Sullivan County, New York. Her parents, Benjamin and Lena Smith, were Polish Jews who had immigrated to the United States in the face of religious persecution. They married in 1936 and settled on a small farm in Maplewood, just outside of Monticello. Young Judith began her schooling in a one-room schoolhouse in Maplewood, but in 1944 the family moved into the village of Monticello and opened a ladies’ clothing store, initially known as Smith’s General Dry Goods Store. As the business prospered, the store relocated to a larger building on Broadway in Monticello and was renamed Smith’s Apparel. Kaye worked at the store from the time she was old enough to reach the countertop (about age 12) through college.¹

While attending Monticello High School, Kaye participated on the debate team and was editor of the student newspaper. Graduating in 1954 at the age of 15, having skipped two grades, Kaye was admitted to Barnard College. Although she hoped to fulfill her ambition of being a journalist (she had spent summers during high school working at The Evening News, a local paper, in addition to the family store), Barnard did not offer a journalism degree. Instead, Kaye majored in Latin American Civilization while serving as editor-in-chief of the Barnard Bulletin and as a campus stringer for the New York Herald Tribune.

Although Kaye graduated from Barnard in 1958 with the ambition of becoming a foreign correspondent, her first job was as a reporter for the Hudson Dispatch, a daily newspaper in Union City, New Jersey, where she was assigned to the society page. Thinking that a law degree would enhance her chances of becoming an international reporter, Kaye entered the New York University School of Law. She took classes at night while working by day as a copy editor at a news service syndicate. Eventually, the law began to interest her more than journalism and Kaye devoted her efforts to her legal career. Having served as an associate editor of the Law Review, she graduated in 1962 from N.Y.U. cum laude and a member of the Order of the Coif. She was one of only 10 women in a graduating class of nearly 300.

Kaye’s first legal employer was the Manhattan law firm of Sullivan & Cromwell, where she worked as an associate for two years. It was at Sullivan & Cromwell that, in April 1963, she met Stephen Rackow Kaye, whom she married on February 11, 1964. After leaving Sullivan & Cromwell, Kaye worked for one year in the IBM legal department in Armonk, New York. Then, while carrying, giving birth to and caring for the Kayes’ three children, Luisa, Jonathan, and Gordon, she returned to New York University where she served as a part-time assistant to Russell Niles, then the Dean of the School of Law. She held that position through three pregnancies, from 1965 to 1969.

Kaye joined the law firm of Olwine, Connelly, Chase, O’Donnell & Weyher in 1969. Initially a part-time associate, Kaye was named the first woman partner in the firm in 1975. A commercial litigator, Kaye distinguished herself through her representation of major clients such as the Lionel Corporation, the New York Produce Exchange, Ralston Purina Co., the Singer Company and U.S. Industries in a broad range of complex cases. Not content solely to provide outstanding legal services to her clients, Kaye was deeply involved in a variety of activities aimed at the improvement of the legal profession and the administration of justice. President Jimmy Carter appointed her to the United States Nominating Commission for Judges of the Second Circuit, and she also served on the Board of Directors of the Legal Aid Society and on the New York State Bar Association’s Judicial Selection Committee. Kaye was a member of the professional ethics committees of both the New York State and New York City Bar Associations, and served on a number of other committees of those associations as well as of the American Bar Association. In 1981, she was appointed by the New York Court of Appeals as a charter trustee of the Clients’ Security Fund (now known as the Lawyers’ Fund for Client Protection).

The distinguished legal career of commercial litigator Judith S. Kaye took a dramatic turn in 1983, however. Mario Cuomo, campaigning for the office of Governor, declared his intention to appoint the first woman to the New York Court of Appeals if he were elected.² A former law clerk to a judge of the Court of Appeals, Cuomo had an abiding respect for the Court, which since its creation in 1847 had been populated entirely by men. Cuomo was elected and had his first chance to appoint a judge to the Court upon the retirement of Associate Judge Domenick L. Gabrielli at the end of 1982. The list of names provided to the incoming Governor by the Commission on Judicial Selection, however, failed to include any women. (The list did include the name of Judge Richard D. Simons, who served brilliantly for his 14-year term on the Court.)³ Cuomo was critical of the Commission, which had another opportunity to generate a new list only a few months later upon the retirement of Associate Judge Jacob D. Fuchsberg. The Commission’s list for the Fuchsberg vacancy included the names of two women: Betty Weinberg Ellerin, then a Supreme Court Justice and Deputy Chief Administrative Judge for the New York City courts (remarkably, there were still no women sitting on the Appellate Division anywhere in the State in 1983), and a 44-year-old private practitioner named Judith Kaye.⁴

Despite having been branded as “not qualified” by the Women’s Bar Association of the State of New York (that rating standing in stark contrast with the approvals of other bar groups, including the New York State Bar Association),⁵ Kaye was nominated by Governor Cuomo,⁶ confirmed unanimously by the Senate,⁷ and sworn in on September 12, 1983 as the first woman judge of the New York State Court of Appeals. Indeed, Cuomo has said that the Women’s Bar Association’s vehement opposition to Kaye — urging the nomination of Justice Ellerin, a longtime leader of that organization, and ultimately terming Kaye’s appointment “unfortunate”⁸ — caused him to pay special attention to Kaye, contributing to her selection.⁹

Associate Judge Kaye

Newly minted Associate Judge Kaye arrived at the Court of Appeals in September 1983 to a burgeoning caseload, the product of laws granting appeals in many routine cases. While legislation was passed in 1985 to limit appeals as of right and increase the Court’s certiorari jurisdiction,¹⁰ reducing the number of cases on the Court’s docket by as much as two-thirds,¹¹ Kaye’s first several years as Associate Judge were consumed by appeals, arguments and motions. It was also a period of significant turnover on the Court. There were several veteran judges on the Court in 1983, including Associate Judges Hugh R. Jones, Matthew J. Jasen and Bernard S. Meyer. By the end of 1986, all three had been forced to retire because of their age, as had Chief Judge Lawrence H. Cooke, a Monticello native and one of Kaye’s mentors. Thus, in less than three years, Kaye had become the third-most-senior judge on the Court, behind only Chief Judge Sol Wachtler and Associate Judge Simons.

Kaye established her home chambers on the eighth floor of 230 Park Avenue, just north of Grand Central Terminal in Midtown Manhattan. Her chambers remain there to this day, though the space they occupied expanded dramatically once she became Chief Judge and required additional staff and support. Her personal office within the chambers is understated but elegant, the walls gradually having become covered over the years with photographs, awards and memorabilia.

Whether working from her chambers on Park Avenue, her home on Central Park West, or the Court of Appeals Hall in Albany, Kaye tirelessly devoted herself to the work of the Court. Many commentators have tried to analyze her judicial philosophy, or to detect patterns or trends in her decision-making over the passage of time, and doubtless her writings will be the subject of scholarly debate for decades to come. At bottom, however, Kaye’s judicial opinions can be harmonized under a single theme, indeed, a single question: “Does it make sense?” That mantra and an abiding respect for stare decisis and the stability of the law are the overarching principles that can be extracted from the jurisprudence of Judith Kaye.

During the very first year of her tenure, the former civil litigator was called upon to address several critical issues of criminal law. In People v. Smith,¹² Judge Kaye wrote the opinion for the four-judge majority that struck down as unconstitutional a mandatory death penalty for murder committed by an inmate already serving a term of life imprisonment. Multiple murderer Lemuel Smith, convicted of killing a prison guard, would have been the first person executed in New York since 1963.¹³ Instead, the Smith decision invalidated the last vestige of the state’s former death penalty statute.

A few years later, in Associated Press v. Bell,¹⁴ the intersection between the constitutional right of the public and the press to attend judicial proceedings and the right of a criminal defendant to a fair trial came into play in the so-called “Preppie Murder” case in which Robert Chambers was being tried for the 1986 death of Jennifer Levin. Writing for a unanimous court, Judge Kaye ruled that:

[b]y denying public access to the suppression hearing on a ‘possibility’ that there might be tainted, nonpublic evidence that might impair the selection of an impartial jury — which could very likely be said of every suppression hearing in every highly publicized case — the trial court improperly closed the door on petitioners’ First Amendment rights.

Later in her tenure as an Associate Judge, in 1990, Kaye dissented from two key decisions of the Court on issues of criminal law. In People v. Hernandez,¹⁵ she disagreed with the Court’s acceptance of a prosecutor’s rationale for excluding two Hispanic jurors from the trial of a Hispanic defendant. The prosecutor contended that the jurors would be fluent in Spanish and might be unwilling to accept the official translation of Spanish testimony. In an opinion joined by Judge Stewart F. Hancock, Jr., Judge Kaye noted that curative instructions and other safeguards could have allayed the prosecutor’s concerns. “On this record,” she wrote, “the removal of the last two Latino jurors for what in the end is simply their proficiency in the Spanish language, should not be sanctioned.” Later that year, Judge Kaye wrote a dissent in People v. Bing.¹⁶ Joined by Judges Fritz W. Alexander, II and Vito J. Titone, she disagreed with the Court’s decision to overrule its relatively recent decision in People v. Bartolomeo,¹⁷ regarding the right to counsel in criminal cases. In so doing, Judge Kaye wrote:

Without in any way entering the current raging debate on the subject of stare decisis in constitutional decisionmaking, it is safe to say that this court in the past had placed a high value on adherence to the doctrine of stare decisis. Not often in our history have we explicitly overruled a recent precedent, and rarely if ever have we done so by a closely divided court. Perhaps even more disturbing than the extraordinary step of overturning Bartolomeo — wrong and unnecessary as it is to do so — is that it cannot help but unsettle the belief ‘that bedrock principles are founded in the law rather than in the proclivities of individuals.’

Judge Kaye was also an early advocate of adherence to the State Constitution in cases where it should be construed to afford New Yorkers greater rights than those afforded by the Federal Constitution, thereby freeing the Court to decide cases notwithstanding federal precedents. In delivering the Benjamin N. Cardozo Lecture at the Association of the Bar of the City of New York in 1987,¹⁸ she expressed the view that:

there may in particular instances be a principled basis for broader protections within this State because of our history in adopting or applying a clause, or for other reasons. While language differences between the two constitutions may determine that there is a need for independent analysis, where our Constitution is at issue the fact that there is no language difference does not spell the end of state judicial review. It invites inquiry into matters of history, tradition, policy and other special State concerns.

Accepting her own invitation, Judge Kaye found greater rights in the State Constitution in several opinions during her tenure as Associate Judge. Writing for the Court in Immuno AG v. Moor-Jankowski,¹⁹ a libel suit implicating federal and state free speech guarantees, Kaye reaffirmed a prior Court of Appeals decision that had been vacated by the Supreme Court. Rejecting the argument that the Supreme Court’s interpretation of the United States Constitution mandated a different result, Judge Kaye looked to New York’s “exceptional history and rich tradition” in preserving the liberty of the press, as well as the Court of Appeals’ “responsibility to settle the law of this State. . . .” In a widely-praised opinion, described as “memorable” by Anthony Lewis in his 1991 book on the First Amendment,²⁰ Judge Kaye concluded that state constitutional law required dismissal of the claim:

Any independent State law activity in one sense can frustrate the pronouncement of Federal law. In another sense, however, State constitutional law review — which is a responsibility of State courts and a strength of our Federal system — advances the process of pronouncing Federal law; a State can act as a ‘laboratory’ in more ways than one. . . .

The next year, in People v. Scott,²¹ the Court rejected the rule that owners of open fields do not enjoy Fourth Amendment protection from unreasonable searches and seizures, holding that federal constitutional doctrine did not adequately protect the state constitutional rights of New Yorkers. Judge Hancock had written the opinion for a four-judge majority; Judge Joseph W. Bellacosa had authored a vigorous dissent in which two other judges joined, attacking the majority decision as unprincipled and ideologically based. Judge Kaye responded to these accusations in a separate concurrence:

A State court decision that rejects Supreme Court precedent, and opts for greater safeguards as a matter of State law, does indeed establish higher constitutional standards locally. But that is a perfectly respectable and legitimate thing to do, and does not in any sense signal a return to the Articles of Confederation. Moreover, with the Federal Bill of Rights having been drawn from State constitutional antecedents, there is naturally some equivalency between charters, but no less reason for courts to enforce the respective constitutional guarantees.

Judge Kaye was also at the forefront in cases affecting the legal profession. In S&S Hotel Ventures L.P. v. 777 S.H. Corp.,²² she authored the opinion for a unanimous Court refusing to disqualify a law firm under the “lawyer-as-witness” rule simply because a lawyer in the firm was to be a witness on behalf of the firm’s client. In a passage that has been quoted frequently in a wide range of cases involving the Code of Professional Responsibility and lawyer ethics rules in general, Kaye wrote:

The Code of Professional Responsibility establishes ethical standards that guide attorneys in their professional conduct, and its importance is not to be diminished or denigrated by indifference. When raised in litigation, however — which in addition to matters of professional conduct directly involves the interests of clients and others — the Code provisions cannot be applied as if they were controlling statutory or decisional law.

Shortly thereafter, the Presiding Justices of the Appellate Division amended the Code provision in question to eliminate imputed disqualification in precisely the circumstances presented in S&S Hotel Ventures.

A few years later, in Niesig v. Team I,²³ Judge Kaye limited the reach of the Disciplinary Rule prohibiting a lawyer from communicating with a represented party by narrowly defining the term “party” in the context of an organizational client. The Niesig test has since become a national standard, and was declared by the American Law Institute in the Restatement of the Law Governing Lawyers to be the prevailing rule in the country.²⁴

In other respects, Associate Judge Kaye was ahead of the curve as well. Indeed, in two notable cases, Judge Kaye’s dissenting opinions as Associate Judge later became the basis for majority opinions of the “Kaye Court.” In Tebbutt v. Virostek,²⁵ the Court ruled that a woman could not recover damages for emotional distress against a doctor who negligently caused the death of her unborn child. Judge Kaye’s terse, one-paragraph dissent stated:

Dismissal of plaintiff’s complaint in this instance leaves no one who can recover for alleged wrongdoing, and frees defendant from responsibility. Defendant performed the complained-of acts on a person in his care. Were the child born alive, a remedy would lie against defendant. An arguably more grievous injury while the child is in utero, resulting in a stillbirth, should not go unredressed. Where the law declares that the stillborn child is not a person who can bring suit, then it must follow in the eyes of the law that any injury here was done to the mother.

Nineteen years later, Tebbutt was overruled in Broadnax v. Gonzalez,²⁶ in which the Court quoted Judge Kaye’s dissent.

In Alison P. v. Virginia M.,²⁷ the Court held that a “biological stranger” — a lesbian who had been raising a child with her former lover, the biological mother — was not entitled to visitation. Judge Kaye dissented, criticizing the majority for failing to recognize the broader implications of its decision. The majority ruling, Kaye wrote, “fixing biology as the key to visitation . . . may affect a wide spectrum of relationships — including those of longtime heterosexual stepparents, ‘common law’ and non-heterosexual partners such as involved here, and even participants in scientific reproduction procedures.” Four years later, however, Chief Judge Kaye would author the opinion for a 4-3 majority in Matter of Jacob,²⁸ in which the Court took a step beyond Alison P. and recognized the adoption rights of both heterosexual and homosexual couples.

Turbulence at the Court: An Unexpected Turn of Events

By 1992, Kaye was poised to continue to serve as an Associate Judge at least until the expiration of her term in 1997, perhaps to be reappointed by the Governor at that time. Other opportunities might well have presented themselves in the interim. Kaye was widely recognized as one of the stars of the judiciary, not just in New York, but nationally. In the fall of 1992, however, an event took place that changed the course of Judith Kaye’s life, as well as the lives of many others.

On Friday, November 6, 1992, Chief Judge Sol Wachtler was in Albany for a New York State Bar Association reception and dinner. At the meeting of the NYSBA House of Delegates that Saturday morning, Judge Kaye was to be honored with the first Ruth G. Schapiro Memorial Award, for contributions to issues affecting women. Kaye asked Wachtler to stay in Albany and attend the award ceremony, but he declined, citing an engagement that required his presence downstate in the morning. Wachtler was arrested early that next morning on the Long Island Expressway by F.B.I. agents for allegedly having harassed and threatened a former lover and her young daughter. Wachtler resigned as Chief Judge on November 10, eventually pleading guilty to a felony charge and spending 11 months in federal prison.²⁹

Wachtler’s term as Chief Judge was not scheduled to end until 1999, although there had been strong indications that he planned to seek the Republican nomination to run against three-term Governor Mario Cuomo in 1994.³⁰ In any event, Wachtler’s sudden and untimely resignation left a vacancy at the helm of the Court. The selection process concluded when Governor Cuomo nominated Judith Kaye to be Chief Judge on February 22, 1993.³¹ As in 1983, she was unanimously confirmed by the Senate,³² and was sworn in as the 22nd Chief Judge of the Court of Appeals by Acting Chief Judge Simons on March 23, 1993. Once again, she was the first woman to hold that position.

At the same time, Judith Kaye also had the opportunity to become the first woman to hold yet another position of great importance: Attorney General of the United States. Bill Clinton was elected President in November 1992, by coincidence only a few days before Wachtler’s arrest. Clinton announced his intention to name a woman to the Attorney General’s post, and Kaye was approached as a potential nominee and met with Clinton in Arkansas.³³ She ultimately declined to pursue the position, expressing her preference for a career on the bench. It was therefore no surprise when a vacancy arose on the Supreme Court of the United States — Justice Byron White announcing his retirement at almost precisely the same time Kaye took the oath as Chief Judge — that Kaye was again at the top of the list of potential candidates.³⁴ Again, she declined, foregoing the opportunity to serve for life on the highest court in the land so that, particularly in the wake of the Wachtler scandal and her appointment as Chief Judge only a few weeks before, stability and normality could return to the Court of Appeals and the New York State Unified Court System.³⁵ New Yorkers were the ultimate beneficiaries of these two decisions.

The Veteran Jurist: Chief Judge of the Court of Appeals

Kaye’s performance as Chief Judge, ongoing as of the date of this writing, has been nothing short of “phenomenal” (to use one of Kaye’s own favorite words). As a judge of the Court of Appeals, she continued to combine the highest level of judicial reasoning with a pellucid writing style, all under the umbrella of “what makes sense.”

What made sense in 1998, for example, was to hold that the fate of frozen embryos that had become the target of a custody battle should be governed by a prior agreement of the couple that had created them. In Kass v. Kass,³⁶ the Court was called upon to decide the fate of five cryopreserved pre-zygotes, developed through an in vitro fertilization program. Writing for a unanimous Court, Chief Judge Kaye concluded that the pre-zygotes were not “persons” for constitutional purposes, and held that the consents signed by the parties unequivocally manifested their mutual intention that, under the circumstances presented, the pre-zygotes be donated for research.

In 2003, what made sense was to require that the New York City public schools provide an opportunity for students to receive a meaningful high school education as required by the New York State Constitution. Writing for the majority in Campaign for Fiscal Equity, Inc. v. State of New York,³⁷ Chief Judge Kaye stated:

Courts are, of course, well suited to adjudicate civil and criminal cases and extrapolate legislative intent. They are, however, also well suited to interpret and safeguard constitutional rights and review challenged acts of our co-equal branches of government — not in order to make policy but in order to assure the protection of constitutional rights. That is what we have been called upon to do by litigants seeking to enforce the State Constitution’s Education Article.

As Chief Judge, Judith Kaye continued to write seminal opinions on issues affecting the legal profession. Graubard Mollen Dannell & Horowitz v. Moskovitz³⁸ established the legal framework for partners leaving law firms. The unanimous opinion — which, like her 1990 decision in Niesig, was embraced nationwide — recognized that the fiduciary duty of a departing partner could give rise to a cause of action for pre-resignation solicitations of firm clients. The next year, in Tekni-Plex, Inc. v. Meyner & Landis,³⁹ Chief Judge Kaye again wrote for a unanimous court in determining that a law firm that had represented a corporation and its sole shareholder during the sale and merger of the corporation could not continue to represent the shareholder in a dispute with the buyer arising out of the acquisition.

The enactment in 1995 of a new capital punishment law for New York led to a series of decisions of the Court of Appeals during Chief Judge Kaye’s tenure, the first such rulings since her opinion as a freshman judge in People v. Smith. In Matter of Hynes v. Tomei,⁴⁰ the Court struck down the plea bargaining provisions of the new law. Writing for a unanimous Court, Chief Judge Kaye reasoned that provisions allowing a defendant to enter a guilty plea to first-degree murder only when the agreed-upon sentence was life imprisonment without parole or certain other specified terms of imprisonment needlessly encouraged guilty pleas and jury waivers to avoid death sentences, in violation of the Federal Constitution. Later in her term, Chief Judge Kaye wrote the opinion for a five-judge majority in People v. Mateo,⁴¹ in which the Court set aside the defendant’s death sentence in view of the two-tiered penalty scheme of the statute that was declared unconstitutional in Hynes, and proceeded to affirm the defendant’s conviction in other respects.

Even before these death penalty rulings, Kaye had authored an opinion in a case related to capital punishment that also implicated the power of government officials, another recurring theme of Court of Appeals cases during her tenure as Chief Judge. In Matter of Johnson v. Pataki,⁴² Kaye wrote for a four-judge majority, holding that the Governor had the authority to supersede the Bronx County District Attorney in a capital case, replacing him with the State Attorney General. The District Attorney had adopted a “blanket policy” that prevented the death penalty from being sought in The Bronx. As Chief Judge Kaye wrote, “[c]learly the Legislature did not allow one or all 62 District Attorneys to functionally veto the statute by adopting a ‘blanket policy,’ thereby in effect refusing to exercise discretion.”

Several years later, in Pataki v. New York State Assembly,⁴³ the Court in a plurality opinion had held that the State Constitution empowers the Governor to attach substantive conditions to his proposed appropriations and that the Legislature is barred from altering those conditions, but must either approve the appropriation subject to the condition or strike it in its entirety. Chief Judge Kaye, joined by Judge Carmen Beauchamp Ciparick, dissented. The opinion recounted the historical and constitutional bases for the budgetary process, and concluded that the Constitution limits the Governor to proposing only items of appropriation, with the Legislature having the power to amend programmatic provisions proposed by the Governor by striking the provisions, amending nonappropriation bills, or enacting single-purpose appropriation bills with amended conditions. She stated:

The executive budgeting scheme set forth in our Constitution is not the system my Colleagues sanction today. For 70 years no Executive has exercised the legislative power the Court, by its affirmance, now recognizes as a template for the future. The Court rejoins that the Legislature is not deprived of its ultimate authority because it retains the option to reject a Governor’s appropriations in their entirety and cease to fund essential services of government. That the system permits stalemate is unconvincing proof that it requires it.

More recently, in Maybee v. State of New York,⁴⁴ the Court rejected a challenge to a gubernatorial “message of necessity,” which is required by the State Constitution before a bill may be passed by the Legislature on an expedited basis. Chief Judge Kaye, joined by Judge George Bundy Smith and Judge Ciparick, wrote separately to disagree with the adequacy of the particular “message of necessity” at issue, reasoning that the history and text of the constitutional provision required that the facts stated by the Governor pertain not merely to the utility of the proposed legislation, but to the necessity of its expedited consideration.

Critics, of which there are but few, have attacked Chief Judge Kaye for allegedly having altered her judicial philosophy in the face of criticism from Governor George Pataki,⁴⁵ who early in his term expressed his dissatisfaction with the Court’s record in criminal cases.⁴⁶ The evidence — particularly Chief Judge Kaye’s opinions in cases relating directly to the Governor’s powers — simply does not support such a conclusion. What emerges from a fair and careful reading of the full body of Chief Judge Kaye’s writings is the same approach to judicial decisionmaking that she embraced from the earliest stages of her career on the bench: a firm commitment to the incremental and sensible development of the common law coupled with a respect for the stability of that law and fundamental principles of stare decisis.

Toward the end of Judith Kaye’s tenure as Chief Judge, the Court was presented with an issue of great social significance: whether same-sex couples have a right to marry. In June 2006, a four-judge plurality in Hernandez v. Robles⁴⁷ concluded that homosexual couples had neither a constitutional nor a statutory right to marriage. In her dissent, joined by Judge Ciparick, Chief Judge Kaye relied on Supreme Court precedents, most notably the decision declaring miscegenation statutes unconstitutional,⁴⁸ and reasoned that marriage is a “fundamental right” of which same-sex couples could not be deprived without due process of law.⁴⁹ The Chief Judge found further support for her conclusion in the equal protection clauses of the Federal and State Constitutions, rejecting the contentions that encouraging procreation within marriage, or the “tradition” of excluding same-sex couples from the right to marry, were valid justifications for discriminatory treatment.⁵⁰ Finally, disagreeing with the plurality that the question was one for the Legislature to address, not for the courts, Chief Judge Kaye wrote:

It is uniquely the function of the Judicial Branch to safeguard individual liberties guaranteed by the New York State Constitution, and to order redress for their violation. The Court’s duty to protect constitutional rights is an imperative of the separation of powers, not its enemy.

I am confident that future generations will look back on today’s decision as an unfortunate misstep.⁵¹

Transcending Justice: Chief Judge of the State of New York

If Kaye’s contributions to the jurisprudence of New York State could be eclipsed, it would only be by her monumental achievements as Chief Judge of the State of New York, the “CEO” of the state court system. It has been in that role that her creativity, initiative and drive have been most evident.

Virtually from the moment she took the oath as Chief Judge, Judith Kaye began working to improve the functioning of the court system in every way possible. The concept of problem-solving courts was born through the Midtown Community Court, where low-level crimes in and around the Times Square area of Manhattan are dealt with through a combination of punishment (often visible community service projects) and treatment, training and counseling. The community court has been replicated throughout the state, the country and in other nations as well, as a model of judicial innovation.⁵² Kaye expanded the concept of problem-solving courts to drug courts, which replace punishment for drug abuse with treatment, monitoring and essential services. Like the community court, the drug court is designed to deal with crime by attacking its root causes in an effort to end recidivism and improve the quality of life in the neighborhood.⁵³ Integrated domestic violence courts were likewise created to enable the court system to address in a comprehensive fashion the many legal issues that domestic violence engenders. Instead of assigning these issues to the separate courts that would ordinarily hear such matters, the integrated domestic violence court permits a single judge to hear multiple cases involving the same family, thereby coordinating the justice system’s response to the situation as a whole.⁵⁴ The creation in 1996 of the Center for Court Innovation, a public-private partnership that is charged with the development of new approaches to the myriad of issues that confront our courts, is one of many testaments to the vision and creativity of Chief Judge Kaye.⁵⁵

Another specialized court that was created under Kaye’s leadership was the Commercial Division of the Supreme Court. When she became Chief Judge, lawyers and litigants in complex business cases shunned the state court system and its overburdened dockets. The federal courts were a more attractive alternative, as were specialized business courts such as the Delaware Chancery Court. Working closely with the organized bar, Chief Judge Kaye created the first Commercial Division in New York County in 1995. The positive reaction to the Commercial Division in Manhattan led to the establishment over the ensuing years of Commercial Divisions in nine other counties.⁵⁶

Early on in her tenure, Chief Judge Kaye announced her intention to focus on the jury system.⁵⁷ She began by successfully urging the Legislature to abolish all automatic exemptions (Chief Judge Kaye herself served three times but was never impaneled as a juror) and expand the jury pool, thereby reducing the average length of a juror’s service from two weeks to one day or one trial.⁵⁸ An automated call-in system was instituted to allow jurors to find out in advance whether they were needed on a particular day or could go about their business. Automatic sequestration in criminal cases was eliminated in 2001; joining the rest of the country, New York gave trial judges the discretion to decide whether sequestration was necessary in each particular case.⁵⁹ All of these changes, spearheaded by Kaye, vastly reduced the burdens on jurors and the court system.

There was also the endemic problem of poor courthouse facilities throughout the state. Once again, as soon as she assumed the Chief Judgeship, Kaye began a campaign to improve the physical plant of the court system. She began by touring the state’s courthouses in 1993, seeing first-hand the deteriorating conditions and lack of support and infrastructure for the judges and staff in virtually every county. Recognizing that substandard facilities impacted not only upon the functioning of the court system but also on the public perceptions of the justice system, Kaye attacked the problem vigorously. Her tireless efforts to increase state funding for courthouse facilities through the judiciary budget, coupled with access to other funding sources such as the State Dormitory Authority, rapidly resulted in the construction or renovation of courthouses across the state.⁶⁰

Not to be overlooked is the fact that, under Chief Judge Kaye’s administration, the Court of Appeals Hall itself was dramatically expanded, renovated, and restored. As part of this project, approximately 60,000 square feet of the courthouse interior was refurbished, and approximately 30,000 square feet of space was added, matching the courthouse’s interior and exterior design. Also, the building’s electrical, plumbing, ventilation, heating, cooling and telecommunications systems were all replaced. The project, overseen by Chief Judge Kaye, culminated in a rededication ceremony in 2004 to which all former Judges of the Court and all former law clerks were invited.⁶¹

Chief Judge Kaye’s efforts to improve the facilities of the court system have included a greater emphasis on technology. As the first Chief Judge to have access to the widespread benefits of computers and the Internet, Kaye explored all possible advantages of the electronic era, including electronic filing, public access to court documents, and computer access to court calendars, dockets, decisions and other information for court personnel, lawyers and litigants (over the Internet as well as in courthouse kiosks).⁶²

Kaye considered it part of her role as Chief Judge to take steps to restore public trust and confidence in the legal profession. She began in 1993 by announcing a series of changes to the rules governing the conduct of attorneys in matrimonial cases, based on the recommendations of a commission that had found widespread problems with the handling of such matters in New York.⁶³ Although the rules were initially received with hostility by leaders of the organized bar in New York, many of whom complained that lawyers were already over-regulated and that matrimonial lawyers were unfairly being singled out,⁶⁴ they served as the springboard for a series of changes over the next few years. Kaye created the Committee on the Profession and the Courts, which held public hearings throughout the state in an effort to understand the sources of public dissatisfaction with the legal profession and the judicial system.⁶⁵ A report issued in 1995 led to several reforms, including mandatory continuing legal education for all lawyers in New York, tougher rules regulating frivolous litigation conduct, the adoption of standards of civility for lawyers, and the creation of what in 1999 became the New York State Judicial Institute on Professionalism in the Law.⁶⁶

The courts themselves were not immune from Kaye’s microscope. Efforts to improve trust and confidence in the judicial system included a complete re-examination of the fiduciary appointment system, which had been beset with favoritism and, in isolated cases, corruption.⁶⁷ In view of studies showing that the public believed that the quality of justice could be affected by the level of contributions made by litigants or their lawyers to the election campaigns of particular judges, a commission was created to recommend changes in the conduct and funding of judicial elections.⁶⁸ In 2003, the New York State Judicial Institute was opened on the campus of Pace University Law School. The Institute, the nation’s first training and research facility for judges built by and for a state court system, was another Kaye initiative, the product of years of planning and work, including legislation in 1999 authorizing funding for construction of the Institute’s physical plant through the State Dormitory Authority.⁶⁹

Not every project undertaken by Chief Judge Kaye proceeded rapidly toward fruition, however. Often, particularly where legislative action was required, years of effort were needed to achieve the momentum and consensus necessary to effect change. Two examples of such efforts were the securing of long-overdue increases in the compensation rates for attorneys representing indigent clients under County Law Chapter 18-B,⁷⁰ and reform of the strict “Rockefeller Drug Laws,”⁷¹ both of which were achieved late in her term as Chief Judge.⁷²

Kaye’s patience has not been rewarded as of this writing in three significant respects. One of her earliest goals was to try, where her predecessors had failed, to restructure the arcane and archaic New York State court system. Legislative initiatives encountered resistance from special interests within both the judiciary and the bar, and despite the benefits to be gained from the creation of a unified trial court, the various proposals made no progress.⁷³ Problem-solving courts, such as the Integrated Domestic Violence Courts, afforded some of the efficiencies that could be gained from a reconfiguration of the courts, but were by no means a complete solution. Chief Judge Kaye continued to persevere, however, creating a Special Commission on the Future of the New York State Courts in 2006 to study the problems of the court system as a whole and to assess the need for reform.⁷⁴ Perhaps future readers of this volume will reap the benefits of Kaye’s initiatives in this regard. Likewise, Chief Judge Kaye’s efforts to open, at least in part, the judicial and attorney disciplinary system to the public were met with consistent opposition from judges and lawyers, despite recommendations from various committees and leaders of the court system and organized bar that public respect for the judicial system would be enhanced by such a move.⁷⁵

Lastly, Chief Judge Kaye sought to solve the problem of judicial pay increases. The statutory linkage between the salaries of judges and legislators, coupled with the politically driven reluctance of legislators to approve pay increases for themselves, caused judicial salaries to stagnate. Ever the innovator, Chief Judge Kaye in early 2006 proposed the creation of a permanent mechanism for the regular salary review of officials in all three branches of government, as well as instituting an annual cost of living adjustment for all government officials.⁷⁶ Whether either of these chronic problems will be rectified in the near future remains to be seen, but if they are not, it will not be for lack of effort or creative thinking on the part of Chief Judge Kaye.

New York’s “Mother of Justice”

A prisoner once opened a letter to the Chief Judge with the salutation, “Dear Mother of Justice.”⁷⁷ In a very real sense, that title befits Judith Kaye. Throughout her career, she has dedicated herself to the concerns of families and children in and out of the courts. In addition to her efforts to improve the handling of matrimonial cases and to address domestic violence through problem-solving courts, discussed above, Chief Judge Kaye emphasized efforts to better the lives of children.

As Chief Judge, Kaye spearheaded efforts to secure legislation designed to improve the child welfare system and to help assure permanency in the adoption process. Working with state and local family services agencies, she strove to increase the number and speed of adoptions in New York.⁷⁸ Perhaps most significantly, for its entire existence — 15 years as of this writing — Chief Judge Kaye has served as Chair of the Permanent Judicial Commission on Justice for Children, the nation’s first interdisciplinary children’s commission based in the judiciary. Among the Commission’s initiatives have been the creation of a statewide system of Children’s Centers in the Courts, so that children brought to court by caretakers with no child care alternatives would have the benefit of a safe and educational environment. Under Kaye’s leadership, the Commission has also worked to secure the passage of laws establishing a system of early intervention services for children with developmental disabilities. The Healthy Development Checklist, Babies Can’t Wait and Education Projects provide written materials and training to help all those involved in child welfare proceedings enhance the well-being of foster children.⁷⁹

Coping with Disaster: The 2001 Terrorist Attacks

Perhaps only someone with the leadership qualities of Chief Judge Kaye could have led the court system through and beyond the tragedy of the terrorist attacks of September 11, 2001. On that morning, she and hundreds of others were in Albany for the opening day of a national conference on access to justice. Displaying her strength and resolve, Kaye insisted that the conference proceed. Refusing to allow terrorist acts to interfere with the functioning of the judicial system, she toured the court facilities in lower Manhattan within days of the attacks, met with city engineers, arranged for a new telephone service and decided that the courts would reopen the following Monday, September 17. Working closely with the other branches of government and the organized bar, Chief Judge Kaye coordinated recovery efforts from her midtown chambers and the headquarters of the Office of Court Administration on Beaver Street in the “frozen zone” of lower Manhattan, providing needed support for the 1,300 lawyers whose offices were destroyed in the attacks and the 14,000 lawyers who were displaced from their offices, and ensuring the proper functioning of the courts despite the loss of life and destruction of infrastructure.⁸⁰ Within a few short weeks, the courts were running at full speed, albeit with tighter security and a greater awareness of the fragility of the freedoms they help protect.⁸¹

Outside the New York Courts

Throughout her service as Chief Judge, Judith Kaye continued as a leader in activities designed to improve the law and the administration of justice nationwide. Remaining active in the organized bar, as well as in public interest and philanthropic organizations, she served as Co-Chair of the ABA Commission on the American Jury, as a member of the Board of Editors of the New York State Bar Journal, as a Director of the National Center for State Courts, as a Trustee of the William Nelson Cromwell Foundation, and as a Founding Member and Honorary Chair of Judges and Lawyers Breast Cancer Alert. Perhaps most significantly, Kaye served as President of the Conference of Chief Justices from 2002 to 2003 (although her induction as President on August 1, 2002 was carried out in her absence due to a broken leg suffered on Maine’s rocky coast that morning). A prolific writer, Kaye authored over a hundred published articles during her tenure on the Court, and was called upon to deliver literally countless speeches throughout her judicial career.

Notwithstanding all of the demands of her position as Associate Judge, and then as Chief Judge, Kaye has remained a devoted wife, mother and grandmother, always ensuring that she has time to spend with her family. Attentive to physical fitness, Kaye is an avid runner. She can frequently be seen circumnavigating the Central Park Reservoir, or working out at a neighborhood health club. She is passionate about the opera, and frequently attends performances at the Metropolitan Opera House in Manhattan as well as in cities around the world. Her network of personal and professional friends is legion, as is her cadre of devoted law clerks, who reunited in 2003, the 20th anniversary of her ascension to the bench and her 10th anniversary as Chief Judge, to pay tribute to her at a dinner held in the John Jay Homestead in Katonah, New York, John Jay having been the very first Chief Judge of the State of New York. The theme of the evening was “From Jay to Kaye,” and the portrait of John Jay that hangs above the Chief Judge’s chair in the courtroom at Court of Appeals Hall was transported to Katonah for the event.

A Bittersweet Epilogue

For more than two decades, Judith Kaye has served the people of New York with the highest distinction. Both as a jurist and as a judicial administrator, her tireless efforts and relentless pursuit of new ideas and solutions to problems long considered insoluble have been recognized across the country. Indeed, the list of honors Kaye has received is beyond impressive. The American Bar Association presented her in 2005 with its John Marshall Award, given to recognize those dedicated to the improvement of the administration of justice, and in 2000 with its Margaret Brent Award, for outstanding achievement by women in the law. The New York State Bar Association presented her with its Gold Medal in 1997 for distinguished service, the highest honor that Association bestows, and (as noted above) its first Ruth G. Schapiro Memorial Award in 1992. Her alma maters have both honored her, New York University School of Law presenting her with its Vanderbilt Gold Medal, and Barnard College awarding her its Medal of Distinction. Dozens of bar associations, law schools and universities have recognized her achievements with awards, medals and honorary degrees, and she has had the privilege of delivering many distinguished lectures and addresses throughout her long judicial career. She has even received several awards from the Women’s Bar Association of the State of New York, which had tried so hard to prevent her initial appointment to the bench in 1983.

Judith Kaye’s legacy, while still incomplete, will never be all it might have been. Her current term is scheduled to end in March 2007. Even if Chief Judge Kaye sought reappointment, her career would be truncated artificially on December 31, 2008 by the law requiring retirement at age 70,⁸² at a time when most appellate judges are still well in their prime. As with so many of her predecessors and colleagues on the Court of Appeals, mandatory retirement will force a premature end to a brilliant judicial career. The law controlling the terms of judges of the Court does not even afford the Governor the power to extend the retirement age, not even in two year increments through age 76, a privilege afforded to Justices of the Supreme Court and Appellate Division. If ever a case were to be made for elimination or modification of the mandatory retirement age for Court of Appeals judges, Judith Kaye would have to be “Exhibit A.”

Whenever Chief Judge Kaye leaves the bench, however, it will be a time to celebrate the career of the woman who brought our state court system into the 21st Century and transformed it into the prototype for all other states to follow. We will honor her leadership in times of crisis and her strength and grace under the harshest conditions. To be sure, pundits will read and analyze her many judicial opinions, scholarly writings and speeches, assessing her career as a jurist. But perhaps most significantly, generations of young women — and “non-women,” as the Chief Judge is fond of saying — will continue to look to her as a role model, the archetype of what can be made of a life in the law, and a stunning example of how a single individual from modest beginnings can, with perseverance and determination, realize her full potential and achieve greatness and immortality.

Progeny

Chief Judge Kaye and her husband, Stephen Rackow Kaye, are the parents of three children. Luisa Kaye Hagemeier is a graduate of the New York University School of Law and is Vice President and Assistant General Counsel of the New York Daily News. Her children are Sonja Alexis (b. 1992), Andrea Jane (b. 1994), and Ben (b. 1997). Jonathan Kaye holds a Ph.D. in Computer Science and Linguistics from the University of Pennsylvania and is the founder and President of Amethyst Research LLC in Philadelphia. His children are Shirin Rebecca (b. 2003) and Shayna Niku (b. 2005). Gordon Kaye holds degrees from Cornell University, the University of Indiana, and the Columbia University School of Business, and is President and General Manager of the Reading Royals, a professional hockey team in Reading, Pennsylvania. He and his wife have a daughter, Amelia Rose (b. 2005).

 

This biography appears in The Judges of the New York Court of Appeals: A Biographical History, ed. Hon. Albert M. Rosenblatt (New York: Fordham University Press, 2007). It has not been updated since publication.

 

Published Writings Include:

Refinement or Reinvention—The State of Reform in New York: The Courts, 69 Alb L Rev 831 (2006)

The Best Oral Argument I (N)ever Made, 7 J App Prac and Process 191 (2005)

Women Chiefs: Shaping the Courts, 36 U Toledo L Rev 899 (2005)

A Passion for Justice: A Tribute to George Bundy Smith, 68 Alb L Rev 211 (2005)

2005: The Year of the Jury, NYLJ, State Bar Week Supplement (Jan. 24, 2005)

Commercial Litigation in New York State Courts, Chapter 1, Volume 2, West’s New York Practice Series (West 1995; 2d ed. 2005)

Introduction to the 2004 Hugh R. Jones Memorial Lecture at Albany Law School, 68 Alb L Rev 1 (2004)

Jury Reform and the Business Community, 12 Metropolitan Corp Csl, No. 11, p 1 (Nov. 2004)

Pro Bono: Together We Stand Tall with New York for Children and Families, Metropolitan Corp Csl (Aug. 2004)

A Tribute to Joseph W. Bellacosa, 78 St John’s L Rev 495 (2004)

Foreword, Public Service in a Time of Crisis, A Report and Retrospective on the Legal Community’s Response to the Events of September 11, 2001 (2004)

Law Day Tributes printed in the NYLJ (Apr. 30, 2004, p 9) and the Rochester Daily Record, Law Day Supplement (Apr. 30, 2004)

In Memoriam—Stanley H. Fuld, 104 Colum L Rev 270 (2004)

Delivering Justice Today: A Problem-Solving Approach, 22 Yale L & Pol Rev 125 (2004)

Judicial Selection: Improve Now, Overhaul Later, Albany Times Union (Oct. 26, 2003)

Collegiality: Something to Celebrate, NYLJ, p 2 (Sept. 9, 2003)

Remarks on Frye and Daubert to the State Bar Trial Lawyers and Torts, Insurance and Compensation Law Section, 32 Torts, Insurance and Compensation Law Section Journal 4 (Summer 2003), reprinted in 76 NY St B J 35 (Nov./Dec. 2004)

A Lesson in the Development of the Law, 72 Fordham L Rev 1 (2003) (with Matthew Morris)

Pro Bono After 9/11, NYLJ, Law Day Supplement (May 1, 2003)

“Problem-Solving” Courts: The New York Experience, 17 Relational Justice Bulletin 1 (2003) (a British publication)

Enduring Values and Changing Times, 57 Record 20 (2002) (The Marden Lecture)

Problem Solving Courts: The Changing Face of Justice: Keynote Address, 29 Fordham Urban L J 1925 (2002)

Another Perspective on the New York Courts, Albany Times Union, B2 (Feb. 10, 2002)

Foreword, 50 Buffalo L Rev 1 (2002)

A Tribute to John D. Feerick, 70 Fordham L Rev 2177 (2002)

I Rise in Defense of State’s Courts, New York Daily News (Jan. 17, 2002)

September 11, 2001 Tribute, 96 NY2d vii (2002)

From September 11 Forward: Looking Ahead for the Courts and the Bar, NYLJ, State Bar Week Issue (Jan. 23, 2002)

Foreword, 2002 Style Manual of the State Reporter of the State of New York (2002)

Coping with Disaster, 85 Judicature 112 (2001); 4 The Judges’ Journal 1 (Fall 2001); 66 Kentucky B J 5 (2002); 3 J App Prac and Process 453 (2001)

My Tribute to Hugh R. Jones, 65 Alb L Rev 1 (2001)

Mandatory CLE Working Well, NYLJ, State Bar Week Supplement, p S1 (Jan. 22, 2001)

Interactive Judicial Federalism: Certified Questions in New York, 69 Fordham L Rev 373 (2000) (with Kenneth Weissman)

Judicial Responses to Domestic Violence: The Case for a Problem-Solving Approach, 27 Western St U L Rev 1 (1999-2000) (with Susan Knipps)

Homecomings: A Eulogy for Chief Judge Lawrence H. Cooke, 64 Alb L Rev 5 (2000)

In Memoriam: Lawrence H. Cooke 1914-2000, 72 NY St B J 50 (Sept. 2000)

Strategies and Need for Systems Change — Improving Court Practice for the Millennium, 38 Family & Conciliation Courts Rev 159 (2000)

Gender Bias in the Courts, 39 The Judges’ Journal 7 (2000)

A Final Letter to My Pen Pal: A Tribute to Milton Handler, 100 Colum L Rev 365 (2000)

A Life in the Law, 30 Seton Hall L Rev 752 (2000)

Courts Launch Program 2000: Meeting the Challenge of Change, NYLJ, State Bar Week Supplement, p S1 (Jan. 26, 2000)

A Remembrance: Tribute to Presiding Justice Denman, NYLJ, p 2 (Jan. 26, 2000)

Poetic Justice: Benjamin Nathan Cardozo (1870-1938), American Lawyer, p 47 (Dec. 1999)

New York’s Commercial Division Celebrates Four Years of Solid Progress, 7 Metropolitan Corp Csl 1 (Nov. 1999)

Portrait of an Artist: A Tribute to Justice Stewart G. Pollock, 74 NYU L Rev 1212 (1999)

Making the Case for Hands-On Courts, Newsweek, p 13 (Oct. 11, 1999)

Cardozo: A Law Classic, 112 Harv L Rev 1026 (1999)

Book Review: Cardozo, by Professor Andrew Kaufman, 54 Record 104 (1999)

Commentaries on Chancellor Kent, 74 Chicago-Kent L Rev 11 (1998)

Lawyering For a New Age, 67 Fordham L Rev 1 (1998)

Cardozo: A View From Eagle Street, 49 Harvard L Bull 10 (1998)

A Tribute to Law and Humanity: Judge Vito J. Titone, 61 Alb L Rev 1391 (1998)

Remarks to the Annual Meeting of the Association of the Bar of the City of New York, 53 Record 321 (1998)

“Year in Review” Shows Court of Appeals Continuing its Great Traditions, 42 NY Law Sch L Rev 331 (1998)

Changing Courts in Changing Times: The Need for a Fresh Look at How Courts are Run, 48 Hastings L Rev 851 (1997)

The Third Branch and the Fourth Estate, 12 Media Studies J 74 (Winter 1997-1998)

How Do We Make The Standards of Civility Work?, IV Jurist 1 (Dec. 1997)

In Memoriam: William J. Brennan, Jr., 111 Harv L Rev 14 (1997)

Judges as Wordsmiths, 69 NY St Bar J 10 (Nov. 1997)

150th Anniversary of the Court of Appeals, 90 NY2d vii (1997)

A Judge’s Perspective on Jury Reform From the Other Side of the Jury Box, 36 The Judges’ Journal 18 (1997)

Things Judges Do: State Statutory Interpretation, 13 Touro L Rev 595 (1997)

Safeguarding a Crown Jewel: Judicial Independence and Lawyer Criticism of Courts, 25 Hofstra L Rev 703 (1997)

Courts, the Public and Criminal Justice, 68 NY St B J 8 (Dec. 1996)

Moving Mountains: A Comment on the Glass Ceilings and Open Doors Report, 65 Fordham L Rev 573 (1996)

The U.S. Constitution: The Original American Dream, 16 Pace L Rev 471 (1996)

A Wish Fulfilled for the Chief Judge, 4 Metropolitan Corp Csl 6 (June 1996)

An “Impressive Show”: A Tribute to Justice Sandra Day O’Connor, 1996 Ann Surv Am L xxxiv (1996)

Business Dispute Resolution—ADR and Beyond: An Opening Statement, 57 Alb L Rev 835 (1996)

State Courts in our Federal System: The Contribution of the New York Court of Appeals, 46 Syr L Rev 217 (1995)

Children’s Centers in the Courts: A Service to Children, Families and the Judicial System, 67 NY St B J 6 (Sept./Oct. 1995)

An Appreciation of Justice Benjamin Cardozo, published by the Centennial Committee of Congregation Shearith Israel (May 20, 1995)

State Courts at the Dawn of a New Century: Common-Law Courts Reading Statutes and Constitutions, 70 NYU L Rev 1 (1995)

How to Accomplish Success: The Example of Kate Stoneman, 57 Alb L Rev 961 (1994)

Finding the Clues to “Just Solutions”, NYLJ, p S1, col 1 (May 2, 1994)

The Importance of State Courts: A Snapshot of the New York Court of Appeals, 1994 Ann Surv Am L xi (1994)

My Salute to an Incomparable Colleague (Stewart Hancock), 57 Alb L Rev 267 (1993)

In Praise of State Courts, NYLJ (Jan. 25, 1994)

Federalism Gone Wild, NY Times Op-Ed (Dec. 13, 1994)

Preparing a Profession for the 21st Century, NYLJ, p 2 (Dec. 13, 1993)

The Changing World of Children: The Responsibility of the Law and the Courts, 65 NY St B J 7 (Nov. 1993)

State Constitutional Common Law: The Common Law as a Full Partner in the Protection of Rights and Liberties, 23 Rutgers LJ 727 (1992)

Women and the Law: The Law Can Change People, 66 NYU L Rev 1929 (1991)

The Status of Women in Law Firms and the Need for More Women Judges, Symposium, 28 TRIAL Magazine 20 (August 1992)

Editor, NY St B J Issue Poor Children in the Decade of the Child (May/June 1991)

Book Review of Martha Minow, Making All The Difference, 27 TRIAL Magazine 56 (Dec. 1991)

The Ethics of Surrogate Decisionmaking: Staking out the Law, 58 Mt. Sinai J Medicine 369 (Oct. 1991)

Effective Brief Writing and Effective Oral Argument, Callaghan’s Appellate Advocacy Manual, John W. Cooley, ed. ‘ 2:27.70 (1991 supp.)

Justice Amsterdam, First Woman on Bench, NYLJ, Special Supplement, pp. 5 10 (May 6, 1991)

A Brief for Gender Neutral Brief Writing, NYLJ, p 2, col. 3 (Mar. 21, 1991)

Medical Malpractice: A Judicial Outlook, 21 Trial Lawyer’s Quarterly 62 (Winter 1990 1991)

Federalism’s Other Tier, 3 CONSTITUTION 48 (Winter 1991)

The Other Side of the Pancake: Some Contrary Thoughts about the Legal Profession, 63 NY St B J 8 (Jan. 1991)

Editor, NY St B J Issue Tricentennial of the New York State Supreme Court (May/June 1990)

A Lesson in the Obvious Reflections on Gideon v. Wainwright, 10 Pace L Rev 419 (1990)

Book Review of Joseph Grodin, In Pursuit of Justice: Reflections of a State Supreme Court Justice, 64 Tulane L Rev 985 (1990)

The Supreme Court: State Constitutional Law, 25 TRIAL Magazine 67 (Dec. 1989)

One Judge’s View of Academic L Rev Writing, 39 J Legal Educ 313 (1989)

Critique of Critical Legal Studies, 1988 Ann Surv Am L 265 (1988)

Women in the Courts as a Reflection of Social Change, Barnard Alumnae Magazine (Spring 1989); reprinted as Women and the Law: Creating Profound Social Change, 26 TRIAL Magazine 50 (Feb. 1990)

“Mommy Track” in Practice, 11 Nat’l LJ 13 (May 22, 1989)

Women Lawyers in the Next Decade Historical Observations: Yesterday, Today and Tomorrow, 61 NY St B J 12 (May 1989)

An Invitation to “Friends”, NYLJ (Dec. 28, 1988); One Judge’s View of ‘Friends of the Court’, 61 NY St B J 8 (Apr. 1989)

The Noreen E. McNamara Lecture Women Lawyers in Big Firms: A Study in Progress Toward Gender Equality, 52 Fordham L Rev 111 (1988). Responses to the article and A Prologue in the Guise of an Epilogue appear in 57 Fordham L Rev 931 996 (1989)

The Human Dimension in Appellate Judging: A Brief Reflection on a Timeless Concern, 73 Cornell L Rev 1004 (1988)

A Midpoint Perspective on Directions in State Constitutional Law, in “Emerging Issues in State Constitutional Law 1988,” published by the National Association of Attorneys General, Washington, DC, Inaugural Issue (1988)

Book Review of Archibald Cox, The Court and the Constitution, for 6 Empire State Court News, No. 11, p 13 (July/Aug. 1988)

The Lawyer’s Responsibility to Enhance Competence and Ethics, 24 Trial 41 (June 1988) (reprinted from Arden House III, ALI ABA Arden House Conference, Nov. 1987)

Our Constitution Reflects the Miracle of our Concept of Immutable Ideals, NYLJ (May 2, 1988)

Contributions of State Constitutional Law to the Third Century of American Federalism, 13 Vermont L Rev 49 (1988)

A Tribute to Dean Redlich, 63 NYU L Rev 12 (1988)

Celebrating Our Other Constitution, 60 NY St B J 8 (Apr. 1988)

Arbitration: A View From the Bench, 42 Arbitration J 3 (1987)

State Constitutional Adjudication Enjoys Clear Historical Foundation, NYLJ (Apr. 29, 1987)

The Cardozo Lecture: Dual Constitutionalism in Practice and Principle, 42 Record 285 (1987); reprinted in 62 St. John’s L Rev 399 (1987), reprinted in part in State Constitutional Law: Cases and Materials 120 (Compiled by Robert F. Williams) (Advisory Commission on Intergovernmental Relations (Oct 1988)

Continuing Public Attacks on Lawyers Call for Bar and Judiciary Responses, NYLJ (Jan. 13, 1987)

Foreword, Report of the New York Task Force on Women in the Courts, 15 Fordham Urb LJ 1 (1986 87)

A Lecture About Judge Benjamin Nathan Cardozo, Presented Dec. 2, 1986 at Congregation Shearith Israel, New York City (Published by the Congregation and Sephardic House)

My “Freshman Years” on the Court of Appeals, 70 Judicature 165 (1986)

Dedication to Chief Judge Lawrence H. Cooke, 53 Fordham L Rev 147 (1984)

 

Endnotes

1. Regarding the early years of Chief Judge Kaye, see generally Paul Grondahl, “Jurist Prudence: For Judith Kaye, The State’s Highest Judge, Sensibility Rules,” Albany Times Union, Oct. 4, 1998; Nathan Mayberg, “Monticello Class of ’54 Welcomes All — Including Chief Judge Judith Kaye,” Sullivan County Democrat, Sept. 17, 2004.
2. David Margolick, “Two Women on List for Top State Court,” New York Times, July 21, 1983.
3. David Margolick, “The Dispute Over Selections for Court of Appeals,” New York Times, Dec. 27, 1982.
4. David Margolick, “Two Women on List for Top State Court,” New York Times, July 21, 1983.
5. Josh Barbanel, “Seven are Found Well Qualified for Judgeship by Bar Group,” New York Times, Aug. 3, 1983; Lindsey Gruson, “Five of Seven Reviewed for Top Court Get High Ranking of Bar Unit,” New York Times, Aug. 5, 1983.
6. David Margolick, “Cuomo Selects First Woman for High Court,” New York Times, Aug. 12, 1983.
7. Josh Barbanel, “Mrs. Kaye Approved for Top Court,” New York Times, Sept. 7, 1983.
8. David Margolick, “Cuomo Selects First Woman for High Court,” New York Times, Aug. 12, 1983.
9. John Caher, “Kaye Seen as Tireless Reformer, Comfortable With the Middle Ground,” NYLJ, Apr. 25, 2000.
10. 1985 N.Y. Session Laws, ch. 300, ‘ 1.
11. Stuart M. Cohen, 2004 Annual Report of the Clerk of the Court to the Judges of the Court of Appeals of the State of New York, 5-6 (2005).
12. 63 NY2d 41 (1984), cert. denied, 469 US 1227 (1985).
13. “Judge Kaye’s Significant Opinions,” NYLJ, Apr. 25, 2000.
14. 70 NY2d 32 (1987).
15. 75 NY2d 350 (1990), aff’d, 500 US 352 (1991) (plurality opinion).
16. 76 NY2d 331 (1990).
17. 53 NY2d 225 (1981).
18. Judith S. Kaye, “Dual Constitutionalism in Practice and Principle,” 42 Record 285 (1987).
19. 77 NY2d 235, cert. denied, 500 U.S. 954 (1991).
20. Anthony Lewis, Make No Law: The Sullivan Case and the First Amendment 212 (1991).
21. 79 NY2d 474 (1992).
22. 69 NY2d 437 (1987).
23. 76 NY2d 363 (1990).
24. See American Law Institute, Restatement (Third) of the Law Governing Lawyers, ‘ 100, Reporter’s Notes (2000).
25. 65 NY2d 931 (1985).
26. 2 NY3d 148 (2004).
27. 77 NY2d 651 (1991).
28. 86 NY2d 651 (1995).
29. Sam Howe Verhovek, “:Wachtler’s Reversal of Fortune; Fallout From Chief Judge’s Arrest Likely to Extend to Courts,” New York Times, Nov. 9, 1992; Josh Barbanel, “Chief Judge Quits Post in New York in Extortion Case,” New York Times, Nov. 11, 1992; Diana Jean Schemo, “A Prison Term of 15 Months For Wachtler,” New York Times, Sept. 10, 1993; Jacques Steinberg, “Wachtler, in Post-Prison Speech, Recalls a Steep Fall From Grace,” New York Times, Dec. 14, 1994.
30. See, e.g., Sam Howe Verhovek, “Friends’ View of Judge: G.O.P. Answer to Cuomo,” New York Times, Nov. 8, 1992.
31. Kevin Sack, “Cuomo’s Choice to Head the Court of Appeals: A Judge’s Judge,” New York Times, Feb. 23, 1993; Sarah Lyall, “Cuomo Nominates Judith Kaye for Top New York Judicial Post,” New York Times, Feb. 23, 1993; Editorial, “Judge Kaye for Chief Judge,” New York Times, Feb. 6, 1993.
32. Sarah Lyall, “Kaye Confirmed as Chief Judge Amid Albany Senators’ Praise,” New York Times, Mar. 18, 1993.
33. Neil A. Lewis, “Clinton Expected to Name Woman Attorney General,” New York Times, Dec. 9, 1992; David Margolick, “Between Speeches With Chief Judge Judith Smith Kaye; In The Matter Of Prestigious Jobs, Red Shoes and Grandchildren,” New York Times, Aug. 11, 1993.
34. Stephen Labaton, “Clinton Nears Choice for High Court Nominee,” New York Times, May 20, 1993; Stephen Labaton, “Clinton is Relying Less on Advisers in Finding Supreme Court Nominee,” New York Times, Apr. 6, 1993.
35. David Margolick, “Between Speeches With Chief Judge Judith Smith Kaye; In The Matter Of Prestigious Jobs, Red Shoes and Grandchildren,” New York Times, Aug. 11, 1993.
36. 91 NY2d 554 (1998).
37. 100 NY2d 893 (2003).
38. 86 NY2d 112 (1995).
39. 89 NY2d 123 (1996).
40. 92 NY2d 613 (1998), cert. denied, 527 US 1015 (1999).
41. 2 NY3d 383, cert. denied, 542 US 946 (2004).
42. 91 NY2d 214 (1997).
43. 4 NY3d 75 (2004).
44. 4 NY3d 415 (2005).
45. See, e.g., Gary Spencer, “Pataki, Kaye Spar in Law Day Speeches; Effects of Criticizing Judges Debated,” NYLJ, May 2, 1996.
46. See Vincent M. Bonventre, Streams of Tendency on the New York Court 117, 243-248 (2003); Vincent M. Bonventre & Kelly M. Galligan, “Court of Appeals Update, 2000 & 2001: Conservative Voting, Narrow Rulings,” 65 Alb L Rev 1085, 1105-1108 (2002); William Glaberson, “For Death Penalty, A Day of Reckoning: Appeal of Revised Law Tests New York’s Highest Court,” New York Times, May 5, 2002; John Caher, “Court Seen as Slow in Expanding Tort Claims, Criminal Defendants’ Rights,” NYLJ, July 24, 2001.
47. 7 NY3d 338 (2006).
48. Loving v. Virginia, 388 US 1 (1967).
49. 7 NY3d at 381.
50. 7 NY3d at 395.
51. 7 NY3d at 396.
52. Judith S. Kaye, The State of the Judiciary – 2006, at 14-15; Judith S. Kaye, The State of the Judiciary – 2001, at 9-10.
53. Judith S. Kaye, The State of the Judiciary – 2006, at 15; Judith S. Kaye, The State of the Judiciary – 2005, at 8-9; Judith S. Kaye, The State of the Judiciary – 1999, at 17-18.
54. Judith S. Kaye, The State of the Judiciary – 2005, at 7; Judith S. Kaye, The State of the Judiciary – 2002, at 7-8; Judith S. Kaye, The State of the Judiciary – 1999, at 18-21.
55. Judith S. Kaye, The State of the Judiciary – 2006, at 13-14; Judith S. Kaye, The State of the Judiciary – 1999, at 38.
56. Judith S. Kaye, The State of the Judiciary – 2006, at 16-17; Judith S. Kaye, The State of the Judiciary – 1999, at 25-26.
57. Gary Spencer, “Kaye Plans Jury System Reforms; Panel Will Launch ‘Innovative’ Study,” NYLJ, Aug. 26, 1993.
58. See, e.g., “Kaye Lauded for Jury Reforms,” NYLJ, Aug. 18, 1997; “Kaye Appoints Panel on Grand Jury System,” NYLJ, Dec. 17, 1997.
59. Judith S. Kaye, The State of the Judiciary – 2005, at 15-17; Judith S. Kaye, The State of the Judiciary – 2001, at 13-15; Judith S. Kaye, The State of the Judiciary – 1999, at 3-6.
60. Judith S. Kaye, The State of the Judiciary – 2005, at 22-23; Judith S. Kaye, The State of the Judiciary – 2001, at 11.
61. Court of Appeals of the State of New York, Restoration and Renovation: 1842-2004, at 10-15.
62. Judith S. Kaye, The State of the Judiciary – 2004, at 14-15; Judith S. Kaye, The State of the Judiciary – 2002, at 9-11; Judith S. Kaye, The State of the Judiciary – 2001, at 12; Judith S. Kaye, The State of the Judiciary – 1999, at 31-32.
63. Jan Hoffman, “New York’s Chief Judge Imposes Strict Rules for Divorce Lawyers,” New York Times, Aug. 17, 1993.
64. Stephen Labaton, “Are Divorce Lawyers Really the Sleaziest?,” New York Times, Sept. 5, 1993.
65. “Kaye Names Panel on Rules for Lawyers’ Conduct”@ NYLJ, Dec. 8, 1993; Judith S. Kaye, The State of the Judiciary – 1999, at 29-30.
66. Judith S. Kaye, The State of the Judiciary – 2003, at 21; Judith S. Kaye, The State of the Judiciary – 1999, at 30.
67. John Caher, “Kaye Directs Probe at Judicial Favoritism,” NYLJ, Jan. 11, 2000; “Chief Judge Kaye Sets Fiduciary Panel,” NYLJ, Mar. 1, 2000; Judith S. Kaye, The State of the Judiciary – 2005, at 17-18.
68. Judith S. Kaye, The State of the Judiciary – 2006, at 4-6.
69. Judith S. Kaye, The State of the Judiciary – 2005, at 21; Judith S. Kaye, The State of the Judiciary – 2001, at 13.
70. John Caher, “18-B, A System Overloaded: Kaye Still Intent on 18-B Hike But Hopes of Resolution Remain Slight as Cost of Sept. 11 Continues to Rise,” NYLJ, Nov. 8, 2001; Judith S. Kaye, The State of the Judiciary – 2003, at 8-9.
71. Gary Spencer, “Kaye Urges Reform of Rockefeller Drug Laws; Cut in Minimum Terms, Treatment Suggested,” NYLJ, Feb. 9, 1999.
72. “Legislature Overrides Veto of Assigned Counsel Rate Hike,” NYLJ, May 16, 2003; John Caher, “Election Fears Seen Behind Drug Law Shift,” NYLJ, Dec. 9, 2004.
73. Judith S. Kaye, The State of the Judiciary – 2006, at 23-24; Judith S. Kaye, The State of the Judiciary – 2004, at 13-14; Judith S. Kaye, The State of the Judiciary – 2003, at 6-8.
74. Judith S. Kaye, The State of the Judiciary – 2006, at 24.
75. Judith S. Kaye, The State of the Judiciary – 2003, at 20-21.
76. Judith S. Kaye, The State of the Judiciary – 2006, at 2-3.
77. David Margolick, “Between Speeches With Chief Judge Judith Smith Kaye; In The Matter Of Prestigious Jobs, Red Shoes and Grandchildren,” New York Times, Aug. 11, 1993.
78. Judith S. Kaye, The State of the Judiciary – 2006, at 7-8.
79. New York State Permanent Judicial Commission on Justice for Children, Accomplishments: 15 Year Report (2006).
80. See generally Oren Root, Vera Institute of Justice, “The Administration of Justice Under Emergency Conditions: Lessons Following the Attack on the World Trade Center (Jan. 2002)”.
81. Judith S. Kaye, “Coping With Disaster,” The Judges’ Journal, at 1, 43-44 (Fall 2001); Jonathan Lippman, “September 11th: The New York Experience,” Remarks Delivered to Meeting of Conference of State Court Administrators, available at www.courts.state.ny.us/history/911/september11th.htm.
82. N.Y. Const., Art. VI, ‘ 25, subd. b.