Chi lascia la via vecchia per la nuova sa quel che perde e non sa quel che trova: the Italian-American experience and its influence on the judicial philosophies of Justice Antonin Scalia, Judge Joseph Bellacosa, and Judge Vito Titone.
In trying to describe how judges decide cases, the renowned Supreme Court Justice and New York Chief Judge Benjamin Cardozo once observed, "[w]e may try to see things as objectively as we please. None the less [sic], we can never see them with any eyes except our own."(1) Cardozo explicitly recognized that other factors besides mechanical interpretation and application of the law are involved in judicial decision making.(2) A judge's background and upbringing often influence his(3) philosophy on deciding a particular case.(4) An individual's background consists of various elements, including religion, class, race, gender, and national origin. Although studies on judicial ethnicity and its effect on case decisions are rare,(5) it has been recognized as an important factor in determining what a judge's "eyes" see.(6) As one ethnic scholar stated, "[e]thnic identity is a basic element in all political equations."(7)
One of the more controversial Justices on the United States Supreme Court is Antonin Scalia.(8) Similarly, two of the most discussed judges on the New York Court of Appeals, that state's highest court, are Joseph Bellacosa and Vito Titone.(9) All three judges are men of Italian origin, but the extent to which their ethnic background has influenced their judicial philosophies is unknown.(10) It seems clear, however, that a judge's ethnic background is a factor influencing the way a judge thinks.(11) Indeed, Judge Titone has written that it is his duty as an appellate judge to set forth the values and beliefs that underlie his legal philosophies.(12) As Mario Cuomo, another Italian-American lawyer prominent in public life, once pointed out, "the patterns of conduct and concern that are formed early in life don't really change a great deal, at least not fundamentally .... [They] operate through ... every decision on what words to write down for other people to read."(13)
The purpose of this Article is to compare the judicial opinions of Justice Scalia, Judge Bellacosa, and Judge Titone to uncover the common influences, if any, that their backgrounds as Italian-Americans have exerted. The purpose, however, is not to prove that their judicial opinions are the direct result of their Italian-American background, but to simply raise the issue. In doing so, this Article will follow several steps. First, it will discuss the general "characteristics" of Americans of Italian origin, those deriving from the concept of la via vecchia, that is, "life within the family." Second, the Article will compare the opinions of Scalia, Bellacosa, and Titone to see if these dominant Italian-American characteristics are reflected in their judicial decision making. Finally, the Article will make some general conclusions about how their Italian-American characteristics might have influenced their positions on certain issues.
II. The Defining Trait of Italian-Americans: La Via Vecchia
Identifying the characteristics of Americans of Italian origin is not an easy task.(14) Some scholars doubt that there is an "Italian-American" identity or characteristics of such an identity.(15) There is very little psychoanalytical and statistical evidence on the question of how Italian ancestry affects values, attitudes, and behaviors.(16) Many scholars, however, have been able, by examining Italian history and other factors, to discern some general characteristics exhibited by Italian-Americans.(17) Two of the sub-characteristics that fall within the defining trait of Italian-Americans, la via vecchia, are a cohesive and traditional structure to the family unit, and a strong penchant to live by strict rules.(18)
Two points should be made before discussing each of these individual characteristics. First, these characteristics are derived from not just an "Italian" background, but more specifically, a southern Italian background. Scholars have found that there are tremendous cultural differences between northern and southern Italians and their emigrants to America.(19) It is the characteristics of southern Italian-Americans that are more relevant to this Article. This is because of the heavier influx of immigrants to the United States from southern Italy.
Second, today's Italian-Americans do not exhibit the discussed characteristics to the same degree as the original Italian immigrants or the first generation Italian-Americans.(20) Scholars have found that these traits have weakened from generation to generation.(21) Scalia, Bellacosa, and Titone are all first-generation Italian-Americans (sons of immigrants), and some traits and sub-traits of Italian-Americans may well have weakened in this first-generation.
A. Italian Familial Cohesiveness
The strong cohesiveness of the family(22) is one of the defining social characteristics of the early Italian-American.(23) As stated by one Italian-American scholar, "it is impossible to be untouched, if not determined, by la via vecchia. An understanding of this pattern of family life is critical to any understanding of Italian-Americans of any generation."(24) This characteristic developed not so much because southern Italians necessarily had a stronger love for family members than other ethnic groups, but rather it developed more out of necessity.(25) There are several historical reasons for this.(26) One can be traced back to the unification of Italy in 1870 and its aftermath.(27) In its drive for unification, the central government (Rome -- northern Italians) sought to impose formal education on southern Italians in a class-based, and biased manner.(28) Southern Italians strongly resisted this campaign because they were generally poorer and needed their children's labor to help sustain the family. Education threatened to break this cohesiveness and the southern Italian peasants strongly resisted. In addition, the fact that Italy was a weakly unified state contributed to the tribalism exhibited by southern Italians.(29)
Another reason for family cohesiveness among Italian immigrants was the prejudice inflicted upon Italians in America. Early Italian immigrants were considered "dark, swarthy" people who could not be trusted.(30) In addition, the onset of World War II caused a further backlash against Italian-Americans because one of the United States' opponents was Facist Italy.(31) These events and prejudices caused Italian-Americans to rely on their families for protection.(32) As described by one scholar, "[t]he [Italian] immigrant's home was his sanctuary, his retreat from the harshness of [American] life."(33)
B. Rules to Live By
It is equally important to examine the characteristics within the "cohesive" Italian-American family. The structure of the Italian-American family was strongly patriarchal, at least in the sense that the father set the rules.(34) "The rule of the parents, especially [the] father, was law" in the Italian family.(35) The father was the highest figure and the breadwinner of the family.(36) While the father was generally considered the highest person in the family, this did not mean that the mother had a diminished status.(37) Although Italian-American families were father-dominated, they were "mother-centered."(38) The mother was the center of domestic life and did not work for wages.(39) She often
aligned the children on their side of the battlefield against
the father.... Outwardly [the father] did appear to rule the
family. In reality, the wife had a sickly power, tightening the
circle of mother and children to the exclusion of the father.
Within this alliance, or camp, she offered her entire being as
a martyr for her children.(40)
Therefore, the mother and the father played different, but equally important roles in the Italian family.(41)
As a result of the authoritarian structure of the Italian-American family, personal freedom for the children was not encouraged, or expected.(42) Again, this is attributable to the history of southern Italian families in Italy. After centuries of oppression from the Italian government, "one way to secure both bread and dignity was by playing it safe -- within the family structure."(43) The result was a high level of child nurturance by the parents, strict discipline techniques, and delayed independence from the family.(44) Family income was placed well ahead of personal ambition. As one scholar put it, "[t]here was little opportunity or need for individual initiative within the communal family group ... because all activities and patterns of thought were based upon traditional folkways and customs."(45) Basically, there were rules Italian-American children were to follow, no questions asked, which gave them a strong sense of right and wrong. This rule-oriented upbringing led Italian-American scholar John Horace Mariano to conclude that two resultant characteristics of Italian-Americans are "[s]traightforwardness and honest dealing" and "[s]ubmission to the majesty of the law."(46)
III. La Via Vecchia: Its Influence on the Italian-American Judges
This section will examine the judicial opinions, writings, and speeches of Justice Scalia, Judge Bellacosa, and Judge Titone to try to discern the extent to which the overriding Italian-American characteristics of la via vecchia have influenced these judges. Again, the influence may not always be obvious and explicit. The point is the opinions and writings of these judicial figures may well reflect the influence of these characteristics.
A. Italian Familial Cohesiveness
1. Justice Scalia(47)
Justice Antonin Scalia of the United States Supreme Court has not written many judicial opinions on family law issues. When he has, however, his writings have revealed the types of families he believes are legitimate and should receive legal protection. Scalia's opinions on the subject show a trend that upholds the traditional Italian-American notion of family -- namely a cohesive, married, husband-and-wife-headed family with children.(48)
Particularly revealing is Scalia's plurality opinion in Michael H. v. Gerald D.(49) To understand Scalia's opinion in the case, a brief summary of the facts is in order. In 1981, Carole D. gave birth to Victoria D., with Gerald D. listed as the father on the birth certificate.(50) Carole believed that Michael H., with whom she had an adulterous affair, was the father and a blood test later showed a 98.07% probability that Michael was the father.(51) Later that year, Michael filed a filiation action in California to establish his paternity and right to visitation.(52) Gerald sought summary judgment based on the California Evidence Code section 621, which provided that "the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage."(53) After the California Supreme Court agreed with Gerald, Michael was granted certiorari to the United States Supreme Court, claiming that section 621 violated his substantive due process rights under the Fourteenth Amendment of the United States Constitution.(54)
Justice Scalia's opinion concluded that section 621 did not violate any due process rights and thus Michael could not rebut the presumption that Gerald was Victoria's father. While some attribute, Scalia's position to his skepticism of "substantive due process" claims,(55) there are hints in his opinion that the influence of the traditional Italian-American family could have motivated the result. Scalia's opinion has overtones of sarcasm, if not outright contempt for Michael H.'s claim. To begin with, Scalia wrote, "[t]he facts of this case are, we must hope, extraordinary."(56) As if to ridicule Michael's claim further, Scalia later stated that, "California law, like nature itself, makes no provision for dual fatherhood."(57) At other places in the opinion, Scalia seemed to be lecturing Michael, emphasizing that a claim for paternity is serious, because a successful claim results in "the sum of parental rights with respect to the rearing of a child, including ... the right to direct the child's activities ... as well as ... the teaching of moral standards,, religious beliefs, and elements of good citizenship."(58)
Scalia was even more explicit about his preference for the traditional Italian family in the portion of his opinion rejecting Michael's "substantive due process" claim. In refuting Michael's argument that his asserted "liberty interest" is rooted in Supreme Court precedent dealing with parental rights, Scalia stated that those cases were based upon "the historic respect -- indeed, sanctity would not be too strong a term -- traditionally accorded to the relationships that develop within the unitary family."(59) Scalia added a footnote to rebut a point made by Justice William Brennan's dissent, which claimed that "only a `pinched conception of" the family"' would exclude Michael, Carole, and Victoria from protection."(60) Scalia denied that and said that the "family unit accorded traditional respect in our society, which we have referred to as the `unitary family,' is typified, of course, by the marital family, but also includes the household of unmarried parents and their children. Perhaps the concept can be expanded ..., but it will bear no resemblance to traditionally respected relationships ..." if it is stretched as far as Michael wants to stretch it.(61) Scalia implied in Michael H. that Michael's claim, if successful, would destroy the "sanctity" of this "unitary family."(62)
Justice Scalia gave other indications about his preferred family structure in Michael H. Several times in the opinion he stressed that what Michael H. was seeking was not the right to establish paternity, but more importantly, the right to obtain parental rights.(63) Scalia, no fewer than six times, referred to Michael (as if to drive home a point) as the "adulterous natural father"(64) For example, when discussing (indeed, mocking) Justice Brennan's idea that Michael has a "freedom not to conform," Scalia stated that Gerald must concomitantly have a "freedom to conform" and that "[o]ne of them will pay a price for asserting that 'freedom' -- Michael by being unable to act as father of the child he has adulterously begotten, or Gerald by being unable to preserve the integrity of the traditional family unit he and Victoria have established."(65) Even the casual observer could not miss the subliminal message in that passage. Indeed, Justice Brennan points this out in his dissent.(66) At least one commentator has also noted Scalia's continuous attachment of "adulterous" to Michael and identified Scalia's message behind it:
The focus on the relationship between an "adulterous" father
and his child was viewed entirely in isolation from the society
in which it took place. This is a culture that recognizes
multiple family groupings. The plurality's refusal to place
this relationship in its societal context leads to a result that
is out of step with the reality of the modern family. While
denying that these "unitary" families are limited to the
traditional nuclear family, the plurality is attempting to
protect the underlying interest of marriage. The plurality's
continued emphasis on the marital family as the sine qua non
for protected rights is exemplified by its consistent
characterization of Michael H. as the "adulterous father" ....
... What the Court has done is exalt the concept of the
"family" over the realities of the situation.(67)
The commentator additionally argued that the preservation of the family unit was critical to the plurality's opinion.(68) Furthermore, Scalia stated in his opinion that the dissent preferred the "unconventional" family unit as a constitutional right.(69)
Justice Scalia has expressed ideas concerning what he believes to be the proper type of family unit in other cases as well. For example, in Reno v. Flores,(70) the Supreme Court, in an opinion written by Scalia, rejected a claim by alien juveniles that they had a substantive due process right under the Fourteenth Amendment to be released from detainment into the custody of a "responsible, person" other than the minor's parents, close relatives, or legal guardians.(71) Again, what is evident is Scalia's hostility to claims that people have a constitutional right to redefine the role of traditional family. Scalia also refused to apply the "best interests of the child" standard to the case.(72) Scalia stated that "[e]ven if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child's welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately."(73) This statement underscores the Italian-American characteristic that the preservation of the family unit is paramount and is in "the best interests of the child."
Justice Scalia's dissent in J.E.B. v. Alabama ex rel. TB.(74) similarly indicates his distaste for redefining the roles people have in relation to one another.(75) In J.E.B., the Supreme Court held that gender-based preemptory strikes were unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.(76) Scalia began his dissent sarcastically: "Today's opinion is an inspiring demonstration of how thoroughly up-to-date and right-thinking we Justices are in matters pertaining to the sexes (or as the Court would have it, the genders), and how sternly we disapprove the male chauvinist attitudes of our predecessors."(77) Scalia also ridiculed the majority's definition of the case as one of "gender discrimination" because gender "has acquired the new and useful connotation of cultural or attitudinal characteristics (as opposed to physical characteristics) distinctive to the sexes.... The case involves ... sex discrimination plain and simple."(78) Scalia concluded by stating that the Constitution does not require or permit "this vandalizing of our people's traditions."(79)
2. Judge Bellacosa(80)
Judge Joseph Bellacosa of the New York Court of Appeals has also written opinions illustrative of his views on the role of the family in society and indicative of the influence of his Italian-American background. In In re Jacob,(81) the Court of Appeals held that an unmarried partner of a child's biological parent, who is raising the child with the biological parent, can become the child's second parent by means of adoption.(82) Judge Bellacosa (along with Judge Titone)(83) strongly dissented.(84) Bellacosa emphasized that the majority's holding has no root in the history of New York's adoption statute or the history of the common law.(85) Bellacosa laced his dissent with contempt for the majority's holding, writing:
Confusion is thus sown by the holdings today by blurring
plain meaning words and clear lines between relationships
that are legally recognized and those that are not. Under the
newly fashioned theory rooted in ambiguity, any number of
people who choose to live together -- even those who may not
cohabit -- could be allowed to adopt a child together....
Marriages and single parent households are not, after all,
mere social conventions generally or with respect to adoption
circumstances; they enjoy legal recognition and special
protections for empirically proper social reasons and public
Bellacosa, exhibiting shades of Justice Scalia in Michael H.,(87) referred to the marital family as "fundamental" and one of the most "sacred human relationships."(88) He feared that the majority's decision would create "[c]onflicts concerning the upbringing of children ... [which] is hardly conducive to the settled, permanent, new home environment and set of relationships directed by [the adoption statute]."(89) Also, in line with the typical Italian belief in the traditional cohesive family, Bellacosa rejected the "best interest of the child" test in deciding what is best for these adoptive children.(90) Bellacosa cautioned that these children are "members of stable homes, already presently in the permanent placement and custody of their biological mothers."(91)
In addition, Judge Bellacosa believed a biological stranger should be denied visitation rights when the child is in the custody of the mother.(92) He also joined in the majority's opinion in Robert O. v. Russell K.,(93) in which the court (in a manner somewhat similar to the Michael H. case) held that an unwed biological father did not have a Due Process liberty interest in vacating the adoption of his child, even though he did not know about the child until after the adoption was finalized.(94)
3. Judge Titone(95)
Judge Vito Titone is generally considered one of the more "liberal" members of the Court of Appeals.(96) His opinions in family law cases, however, display a preference for a family structure that strongly resembles the traditional, "conservative" Italian notion of a cohesive family unit.
To the surprise of many Court of Appeals observers,(97) Judge Titone joined Judge Bellacosa's dissent in In re Jacob,(98) the recent Court of Appeals case interpreting New York's domestic relations law to allow adoptions by the partner (whether homosexual or heterosexual) of the biological mother. Perhaps Titone's concurrence in Bellacosa's strong dissent in this case should not be so surprising. For example, in Robert O., Titone concurred separately, agreeing that the unwed biological father should not be able to upset the ten-month old adoption because of "[t]he importance of finality in the lives of the children involved in the adoption process."(99) Titone added to his rationale that "[o]ne of the most crucial elements of a healthy childhood is the availability of a stable home in which each family member has a secure and definite place."(100) He also added that "[t]he bond, the love, the intense emotion between adoptive parents and the child placed in their home, is created the very moment their dream is fulfilled and a child comes through the door."(101) Additionally, in Ware v. Valley Stream High School District,(102) Judge Titone dissented from the majority's ruling (as did Judge Bellacosa, but for different reasons) that members of a religious group were entitled to a hearing on whether regulations which mandated AIDS education to all students violated their First Amendment "Free Exercise" rights.(103) Titone believed that the religious group was entitled to summary judgment, and offered this rationale:
I believe that we jeopardize an important element of our
social structure when we too readily displace the moral and
spiritual guidance that may be derived from family and
church with the secular and purportedly value-neutral
instruction that our public schools are equipped to
provide.... I cannot overlook the fact that our contemporary
faith in the power of secular education has not immunized us
from such social ills as rampant drug abuse, an inordinately
high drop-out rate, family dissolution and spiritual
demoralization, as well as socially transmitted diseases such
as AIDS.... I am most reluctant to assume that today's
prevailing culture, which places its faith in objective
knowledge, is "right" while plaintiffs and others like them,
who place their faith in moral and spiritual guidance, are
The majority took exception to this passage, calling it "undeservedly critical of the court."(105) Titone retorted that he was not being critical of the court, but was "simply exercising my prerogative -- and, indeed, my duty -- as an appellate Judge to expose the values and beliefs that underlie my legal position."(106)
Also, in In re Baby Boy C.,(107) Judge Titone concurred separately to express his objection to the court's opinion holding that a joint adoption could not be granted when the prospective father refused to consent to the statutory requirements.(108) Judge Titone's concurrence was laced with hints of the influence of the traditional Italian family unit.(109) For example, he stated that he "wholeheartedly believe[d] that, as a matter of law, a child's best interests are never served by forcing an unwilling and unfit person to assume the intimacy and responsibility of becoming a parent."(110) Titone emphasized, in a manner similar to Justice Scalia in Michael H.,(111) how much responsibility parenthood entails.(112) He also stated that "one of the fundamental purposes of the best interests [of the child] inquiry [is] to ensure that the child is placed in a stable home environment."(113)
Furthermore, in Braschi v. Stahl Associates,(114) the Court of Appeals, in a decision authored by Judge Titone, held that the term "family," as used in the non-eviction provision of the rent-control laws, includes unmarried (including gay) lifetime partners of tenants, not just persons related by blood or law.(115) While at first glance this decision does not appear to be in accordance with traditional Italian family structural principles, in actuality, it is. The traditional Italian families of southern Italy, and of the early American immigrants, did not include just immediate blood relatives and distant blood relatives.(116) Everyone within a kinship circle (perhaps even within the entire community) were part of the family, and the circle provided economic, recreational, religious, social, and protective functions.(117) This is how Judge Titone and the majority including Judge Bellacosa's concurring opinion) saw unmarried lifetime partners. They believed that unmarried lifetime partners should be included in the term "family" in the non-eviction protection provision of the rent-control laws.(118) Titone stated that "[t]his view comports both with our society's traditional concept of `family' and with the expectations of individuals who live in such nuclear units."(119) He also noted that "Webster's Dictionary defines `family' first as `a group of people united by certain convictions or common affiliation.'"(120)
Titone indicated his preference for a cohesive family unit, no matter what the form, in In re Tropea.(121) A unanimous Court of Appeals, in an opinion authored by Titone, held that cases involving the custodial parent moving children away from the non-custodial parent should be decided on a case-by-case basis.(122) The opinion threw out the old test that made the proximity children to the noncustodial parent the paramount factor to consider.(123) The old rule, Titone stated, "overlook[ed] the value for the children that strengthening and stabilizing the new, post-divorce family unit can have in a particular case."(124) Titone further stated:
Like Humpty Dumpty, a family, once broken by divorce,
cannot be put back together in precisely the same way...
[I]t may be unrealistic in some cases to try to preserve the
noncustodial parent's accustomed close involvement in the
children's everyday life at the expense of the custodial
parent's efforts to start a new life or to form a new family
While Titone says that the best interests of the child are always of paramount importance in these cases,(126) he seems to be saying that forming a new, traditional family unit may sometimes outweigh keeping the children near the non-custodial, non-"family unit" member.
B. Rules to Live By
1. Justice Scalia
Justice Scalia has made explicit his preference for bright-line rules as a guide for judges in both his speeches(127) and judicial decisions.(128) This is in accordance with the traditional Italian-American family's strong proclivity for strict rules to live by and the restraint of personal freedom that Italian children experienced.(129) Scalia prefers "categorical rules" because it is [o]nly by announcing rules do we hedge ourselves in."(130) He scorns the use of "totality of the circumstances test[s]" by appellate judges because that judge is doing little more than "fact-finding."(131) These types of tests give judges free reign to impose their personal preferences into the case.(132) To Scalia, these "balancing tests" inhibit some of the most important aspects of the judicial system: fairness,(133) predictability,(134) judicial restraint,(135) and legitimacy.(136) As scholar John Horace Marino has said, Italians traditionally have an authoritarian upbringing that results in a tendency to "submit to the majesty of the law."(137) Perhaps this is one of the reasons that Scalia prefers interpreting statutes by their "plain meaning"(138) and the Constitution by its text and traditions.(139)
Justice Scalia's Supreme Court opinions explicitly demonstrate his preference for bright-line rules. For example, in Burnham v. Superior Court,(140) a plurality of the court, speaking through Justice Scalia, held, as a per se rule, that the presence of an individual in a state is a basis for personal jurisdiction, meeting the requirements of procedural Due Process under the Fourteenth Amendment.(141) Justice Scalia explained that because "presence" jurisdiction was "[a]mong the most firmly established principles," which had a historical pedigree in American jurisprudence, it alone was enough to meet due process standards.(142) Justice Brennan's concurring opinion argued that "presence" jurisdiction alone was not enough to meet due process; rather, more contacts with the jurisdiction were needed to obtain personal jurisdiction and meet "contemporary notions of due process."(143)
Scalia did the unusual (well, perhaps not unusual for him) in Burnham by devoting an entire section of his opinion to refuting Justice Brennan's concurrence.(144) He took exception to Brennan's characterization that his "minimum contacts" test for presence jurisdiction is a "rule" that, if met, will satisfy the requirements of due process.(145) Scalia wrote:
[Justice Brennan's] use of the word "rule" conveys the
reassuring feeling that he is establishing a principle of law
one can rely upon -- but of course he is not. Since Justice
Brennan's only criterion of constitutionality is "fairness," the
phrase "as a rule" represents nothing more than his
estimation that, usually, all the elements of "fairness" he
discusses in the present case will exist. But what if they do
not? ... [E]very different case will present a different
litigable issue. Thus, despite the fact that he manages to
work the word "rule" into his formulation, Justice Brennan's
approach does not establish a rule of law at all, but only a
"totality of the circumstances" test, guaranteeing what
traditional territorial rules of jurisdiction were designed
precisely to avoid: uncertainty and litigation over the
preliminary issue of the forum's competence.(146)
According to Scalia, the fact that there has been a long-standing tradition and rule that one is subject to a state's jurisdiction when one enters that state is "`fair' in the limited sense that he has no one but himself to blame."(147) Elements of Justice Scalia's partiality for rules can also be found in his opinions on Establishment Clause issues,(148) statutes of "general applicability,"(149) and the "original intent" of the Constitution.(150)
2. Judge Bellacosa
Judge Bellacosa has not been not as explicit as Justice Scalia in favoring the issuance of per se rules by courts. In fact, in some cases, Bellacosa has expressed dissatisfaction with per se rules that take away judges' discretion.(151) He often objects to "the majority's application of a previously formulated rule to a set of similar facts, or creation of a new rule."(152) This might lead one to conclude that the Italian penchant for rules and strict adherence to them has not affected Bellacosa. A closer look at his opinions, however, reveals that Bellacosa strongly prefers per se rules in certain cases, and his rejection of per se rules in others underscores his own belief that there are certain per se rules that people in society must follow.
Bellacosa certainly does not believe that judges should always have discretion to do what they want.(153) Several of his opinions have explicitly applied the type of strict rules that he has railed against from time to time. For example, in People v. Marrero,(154) the Court of Appeals, in a divided opinion, held that the defense of mistake of law was not available to a federal corrections officer in his trial for firearms possession.(155) Bellacosa, writing for the majority, stressed the importance of construing the penal law narrowly,(156) and emphasized the stringent common law rule that ignorance of the law is no excuse.(157) He continued his opinion by praising the "law-and-order results of the common law, rule, and deemed that strict application of the penal code encourages knowledge of and respect for the law,'(158) while the mistake of law exception encourages ignorance of the law."(159) Bellacosa's application of a per se rule in Marrero is sharply at odds with his obvious distaste for the per se rules handed down by the court in other cases.
Bellacosa is just as candid about the value of rules in Orvis Co. v. Tax Appeals Tribunal.(160) In this case, the court held that more than a slight, but less than a substantial, physical presence was required in order to impose a duty on out-of-state vendors to collect compensating use taxes from in-state customers.(161) Bellacosa dissented on the grounds that the majority's opinion upset clear rules laid down by the United States Supreme Court with respect to the Interstate Commerce Clause.(162) Bellacosa wrote:
[The] artificiality [of the Supreme Court's "substantial nexus"
rule in Interstate Commerce Clause cases] is more than offset
by the benefits of a clear rule. Such a rule firmly establishes
the boundaries of legitimate state authority to impose a duty
to collect sales and use taxes and reduces litigation
concerning those taxes.... [A] bright line rule in the area of sales
and use taxes also encourages settled expectations and, in
doing so, fosters investment by businesses and individuals.
New York's approach, now approved by this
Court ... contradicts [the] rationale, certainty and the
Bellacosa's inconsistency on per se rules leads to a consistent result. He favors per se rules when they lead to results that "control" crime and society, and disfavors rules when the result is the opposite.(164) What one can extract from Bellacosa's view is that while he is not a strong supporter of rules which bind judges, he does support those that bind people in society to a strict code of conduct. Evidence supporting this conclusion is that Bellacosa has consistently been one of the most pro-prosecution judges on the Court of Appeals.(165) Bellacosa once said, "[D]efiance of the Rule of Law ... is intolerable and, of course, legally contemptuous. Disrespect for the Rule of Law and the Adjudicative Process by populist polemics and techniques is also a very bad trend."(166) Bellacosa, therefore, does exhibit the Italian characteristic of being rule-oriented, even though, as a judge, he does not want to be consistently bound by rules.(167)
3. Judge Titone
Judge Titone has clearly shown a preference for per se rules, particularly those he deems necessary to control governmental abuse of vulnerable individuals. Titone believes, in a manner somewhat similar to Scalia,(168) that an important role for appellate judges is to provide guidance and clarification to lower courts.(169) For example, in People v. Branch,(170) Titone dissented and strongly criticized the majority's broad grant of discretion to the trial court in allowing a prosecutor to hold a private conference with a witness who had given an unexpected and possibly injurious response.(171) It was the responsibility of the court, according to Titone, to draw lines and establish criteria for trial courts to follow.(172) Also, in People v. Duuvon,(173) he criticized the majority for failing to lay down a per se rule for the due process implications of show-up identifications.(174) He stated that he could not "join in an opinion that advocates a case-by-case inquiry but provides no concrete standards or guidelines to aid in distinguishing permissible from impermissible show-up procedures."(175)
Judge Titone believes in strict adherence to rules, even if it results in an outcome that may be viewed as undesirable by some, such as reversing a conviction.(176) When individual rights have been given protection by statute, Judge Titone has advocated strict adherence to the procedures set forth to protect that right.(177) For example, in People v. Patterson,(178) Titone dissented from the court's holding that the exclusionary rule, which is reserved for constitutional violations, could not be applied in the context of a statutory right that is violated.(179) Titone's dissent was based on his belief in strictly following procedures to guarantee statutory rights.(180) He has exposed this view in numerous other cases as well.(181)
In a law review article, Titone expressed the importance of rules of law in judicial decision-making.(182) He wrote that "[a]ttention to methodology is an obligation we owe to the people of the states, who rely on us to assure that the law which governs their lives reflects fundamental contemporary norms."(183) He continued, "the special need for caution in the area of state constitutional adjudication lends particular urgency to our efforts to develop a coherent methodology that will produce reasonably consistent and predictable results."(184) Thus, Titone also exhibits the Italian characteristic of an adherence to rules which constitute a strict and binding code of conduct.
As stated earlier, defining the traits of Italian-Americans is not an easy task. Linking these characteristics to the judicial philosophies and opinions of Justice Scalia, Judge Bellacosa, and Judge Titone is even more difficult. Part of the reason for this difficultly is that the judges themselves speak inconsistently on the issue of whether their personal backgrounds affect their opinions.(185) But, as Cardozo said, it is impossible for judges to escape from their values; they are most often subconscious.(186)
Several general trends emerged from this study. First, Scalia, Bellacosa, and Titone seem to favor fashioning legal opinions that adhere to traditional, cohesive "Italian" family structures. Scalia, as evidenced by his opinion in Michael H.,(187) seems more apt to give protection to the "Italian" family in form (cohesiveness) and substance (natural father and mother headed).(188) Bellacosa and Titone seem more willing to allow, the substance of the "family" to change somewhat (e.g., allow gays to constitute a family unit), but they adhere strongly to the form (cohesiveness, e.g., a custodial mother and step-father as a family unit is better for the children than no family unit at all). Second, all three judges tend to prefer applying per se rules of law, similar to the Italian characteristic that the members of the family unit, la via vecchia, had strict rules to follow. Scalia and Atone have been more consistent in this trait, while Bellacosa's inconsistency leads to the consistent result that society has rules to follow.
The purpose of this Article was to raise the issue of the effect a judge's ethnic background has on his judicial philosophy. Litigants have many factors to consider when they face a judge, including the judge's "likes and dislikes, the predilections and the prejudices, the complex of instincts and emotions and habits and convictions, which make the man."(189) These, as we may or may not realize, appear to be influenced by ethnic heritage. (1) Benjamin N. Cardozo, The Nature of the Judicial Process 13 (1949).
(2) See id. at 12-13. Cardozo stated:
There is in each of us a stream of tendency ... which gives coherence and direction to thought and action. Judges cannot escape that current any more than other mortals. All their lives, forces which they do not recognize and cannot name, have been tugging at them-inherited instincts, traditional beliefs, acquired convictions; and the resultant is an outlook on life, a conception of social needs ... which, when reasons are nicely balanced, must determine where choice shall fall. In this mental background every problem finds its setting.
(3) For the purposes of simplicity only, I will use the male pronoun.
(4) See Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model 231-34 (1993).
(5) See generally Robert A. Burt, Two Jewish Justices: Outcasts In The Promised Land (1988) (comparing Justices Felix Frankfurter and Louis Brandeis and the influence of their Jewish ethnicity on their judicial philosophies); Barbara A. Perry, A "Representative" Supreme Court?: The Impact of Race, Religion, and Gender on Appointments (1991) (studying past Court appointments that have been representative of different backgrounds); Nomi M. Stolzenberg, Un-Covering the Tradition of Jewish "Dissimilation": Frankfurter, Bickel, and Cover on Judicial Review, 3 S. Cal. Interdisc. L.J. 809, 813 (1994) ("To make claims about connections between Jewish self-identity and the development of legal ideas is to venture into a treacherous domain. In general, demonstrating causal connections between context and text is a challenge for even the most accomplished intellectual historian.").
(6) See supra note 1 and accompanying text.
(7) Salvatore J. LaGumina, Case Studies of Ethnicity and Italo-American Politicians, in The Italian Experience in the United States 143 (Silvano M. Tomasi & Madeline H. Engel eds., 1970).
(8) See George Kannar, The Constitutional Catechism of Antonin Scalia, 99 Yale L.J. 1297, 1299 (1990) (noting Scalia's reputation for being "enigmatic").
(9) See generally Luke Bierman, The Dynamics of State Constitutional Decision-Making: Judicial Behavior at the New York Court of Appeals, 68 Temp. L. Rev. 1403 (1995); Vincent Martin Bonventre, Court of Appeals -- State Constitutional Law Review, 1991, 14 Pace L. Rev. 353 (1994); Vincent Martin Bonventre, Court of Appeals -- State Constitutional Law Review, 1990, 12 Pace L. Rev. 1 (1992).
(10) It is probably unknown to Scalia, Bellacosa, and Titone themselves because, as Cardozo points out, "[m]ore subtle are the forces so far beneath the surface that they cannot reasonably be classified as other than subconscious. It is often through these subconscious forces that judges are kept consistent with themselves, and inconsistent with one another." Cardozo, supra note 1, at 11-12.
(11) See supra notes 6-7 and accompanying text.
(12) See Ware v. Valley Stream High Sch. Dist., 550 N.E.2d 420, 435 n.3 (N.Y. 1989) (Titone, J., dissenting).
(13) Mario M. Cuomo, Diaries of Mario M. Cuomo: The Campaign for Governor 13 (1984).
(14) See Paul J. Campisi, Ethnic Family Patterns: The Italian Family in the United States, in The Italians: Social Backgrounds of an American Group 311-12 (Francesco Cordasco & Eugene Bucchioni eds., 1974).
(15) See Rudolph J. Vecoli, The Search for an Italian-American Identity Continuity and Change, in Italian Americans: New Perspectives in Italian Immigration and Ethnicity 89 (Lydio F. Tomasi ed., 1985).
(16) See id. at 90-91.
(17) See generally Luigi Barzini, The Europeans 1983); James A. Crispino, The Assimilation of Ethnic Groups: The Italian Case (1980); Philip diFranco, The Italian American Experience (1988); Richard Gambino, Blood of My Blood: The Dilemma of the Italian-Americans (1974); Colleen Leahy Johnson, Growing Up and Growing Old in Italian-American Families (1985); Joseph Lopreato, Italian Americans (1970); Humbert S. Nelli, From Immigrants to Ethnics: The Italian Americans (1983); Andrew Rolle, The Italian-Americans: Troubled Roots (1980); Thomas L. Shaffer & Mary M. Shaffer, Character and Community: Rispetto as a Virtue in the Tradition of Italian-American Lawyers, 64 Notre Dame L. Rev. 838 (1989); The Italians: Social Backgrounds of An American Group (Franceso Cordasco & Eugene Bucchioni, eds. 1974); Vecoli, supra note 15.
(18) See supra note 17 (citing sources describing characteristics common to many Italian-Americans).
(19) See Thomas Sowell, The Economics and Politics of Race: An International Perspective 72-73 (1983) (pointing out the cultural differences between Northern and Southern ltalians); Vecoli, supra note 15, at 89 ("Given the enormous complexity of the population of Italian ancestry, the product of over a century of immigration, differentiated by generation, social class, regions of origin and destination, it is safe to assume a multiplicity of identities.").
(20) See Campisi, supra note 14, at 313-15 (containing table showing changes in characteristics).
(21) See id.; see also Rolle, supra note 17, at 127 (noting that children of immigrants were eager to discard their folkways); Shaffer & Shaffer, supra note 17, at 845.
(22) It should be noted that the term "family" in Italian terms does not just include immediate family and blood relatives. It encompasses a kinship circle in which everyone in a particular town or community within a town relies on each other for support and resources. See Crispino, supra note 17, at 20.
(23) See id. at 20-21; see also Shaffer & Shaffer, supra note 17, at 841 ("The constant in Italian-American life is the family. The family is consistently described as the nursery of Italian-American values." (footnote omitted))
(24) Gambino, supra note 17, at 5.
(25) See id. at 4 (discussing the strength of the Italian family resulting from a history of foreign invasions).
(26) See Vecoli, supra note 15, at 91 (indicating that history must be analyzed because there is very little evidence indicating how Italian ancestry affects values, attitudes, and behaviors).
(27) See Shaffer & Shaffer, supra note 17, at 854-55.
(28) See id.
(29) See Crispino, supra note 17, at 20.
(30) See Vecoli, supra note 15, at 100 (noting that "[s]ince the 1880s, the Italians had had a bad press; they were portrayed as ignorant, dirty, lazy, servile, superstitious, pagan, but most of all as dishonest, criminal, and bloodthirsty").
(31) See id. at 96-97; James Brooke, An Official Apology is Sought From U.S., N.Y. Times, Aug. 11, 1997, at A1.
(32) See Rolle, supra note 17, at 110.
(34) See id. at 111.
(35) Id. See also Johnson, supra note 17, at 187; Shaffer & Shaffer, supra note 17, at 861 (describing the essence of Italian-American families as "loyalty to the father and the family before the state"). The article also quotes an Italian interviewee who said: "The strong sense of respect for elders, for the mother and father, binds you until you fall into a pattern of "what father wants, father gets," and it spills over into attitudes toward people in authority. Italian Americans don't fight for things." Id. at 866.
(36) See Rolle, supra note 17, at 111.
(37) See id. at 113. Some believe that women in the Italian family were to be both revered and demeaned. Much of this is attributable to the special role the Virgin Mary, mother of Christ, occupies in the Catholic Church.
Women, remindful of Christ's virgin birth, are to be both worshipped and dominated. The Madonna had been a mother but scarcely a wife. Accordingly, the Italian woman has historically reduced the power and importance of sexuality by accepting a mater dolorosa role. Repudiation of erotic impulses has led women toward lives spent waiting upon men, including their sons. Some wives iron shirts, shine shoes, clean, mend, and cook almost constantly. In all this work they seem to be both exalted and demeaned.
Id. at 111.
(38) Campisi, supra note 14, at 313.
(39) See id.
(40) Rolle, supra note 17, at 112.
(41) See id. at 113 (stating that "[m]other centered and father dominated, the Italian family resembled a tossing ship plowing its way through the unfamiliar shoals of American life").
(42) See id. at 114 ("In authoritarian settings much is forbidden, little encouraged.").
(44) See Johnson, supra note 17, at 183. Johnson points out that Italian children faced strict discipline and behavioral conformity was expected of them. See id. at 187.
(45) Sowell, supra note 19, at 73 (quoting Leonard Covello, The Social Background of the Italo-American School Child 191 (1972)).
(46) John Horace Mariano, The Italian Contribution to American Democracy 239 (1975). The phrase "submission to the majesty of law" means that the rules laid down by the parents are the "law" to which Italians "submit." See diFranco, supra note 17, at 175 (pointing out that part of the reason Italians were so rule oriented and are generally considered "tough" on crime stems from the days of the Roman Senate and the Roman Empire's social commitment to rule by law rather than by men). Cf. Planned Parenthood v. Casey, 505 U.S. 833, 984 (1992) (Scalia, J., concurring in part and dissenting in part). In his dissent, Justice Scalia said:
[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.
Id. (quoting Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 621 (1857) (Curtis, J., dissenting)).
(47) Antonin Scalia was born March 11, 1936, in Trenton, New Jersey. His father was an immigrant from Sicily and his mother was born to immigrant Italian parents. He grew up in Queens, New York. He attended St. Francis Xavier, a military prep school in Manhattan, and then went on to Georgetown University, where he graduated Valedictorian of his class. Scalia then went on to Harvard Law School, where he graduated magna cum laude. He and his wife, Maureen, have nine children. See The Supreme Court Justices: Illustrated Biographies, 1789-1993, at 511-12 (Clare Cushman ed., 1993).
(48) See Mary Kay Kisthardt, Of Fatherhood, Families and Fantasy: The Legacy of Michael H. v. Gerald D., 65 Tul. L. Rev. 585, 627 (1991) (emphasizing how Scalia adheres to traditional notions of married family in deciding this case).
(49) 491 U.S. 110 (1989).
(50) See id. at 113.
(51) See id. at 114.
(52) See id.
(53) Cal. Evid. Code [sections] 621(a) (Deering 1986). (54) See Michael H., 491 U.S. at 116; see also Edward Gary Spitko, Note, A Critique of Justice Antonin Scalia's Approach to Fundamental Rights Adjudication, 1990 Duke L.J. 1337 (1990) (stating in jest that "[t]he story of Carole, Michael, Victoria, and Gerald is not from the script of television's hottest daytime drama").
(55) See Planned Parenthood v. Casey, 505 U.S. 833, 979 (1992) (Scalia, J., concurring in part and dissenting in part); Cruzan v. Director, Missouri Dep't of Health, 497 U. S. 261. 294, (1990) (Scalia, J., concurring).
(56) Michael H., 491 U.S. at 113 (emphasis added).
(57) Id. at 118 (emphasis added).
(58) Id. at 118-19 (quoting 4 California Family Law [section]60.02[b] (C. Markey ed., 1987)).
(59) Id. at 123 (emphasis added). When rhetorically answering the question whether a relationship like Michael and Victoria's has been protected under the historic practices of our country, Scalia replied, "[w]e think it impossible to find that it has. In fact, quite to the contrary, our traditions have protected the marital family (Gerald, Carole, and the child they acknowledge to be theirs) against the sort of claim Michael asserts." Id. at 124.
(60) Id. at 123 n.3.
(61) Id. (emphasis added).
(62) Id. at 123 (discussing Stanley v. Illinois, 405 U.S. 645 (1972)).
(63) See id. at 126 ("What Michael asserts here is a right to have himself declared the natural father and thereby to obtain parental prerogatives.").
(64) Id. at 144 (Brennan, J., dissenting).
(65) Id. at 130 (emphasis added).
(66) See id. at 144 (Brennan, J., dissenting).
(67) Kisthardt, supra note 48, at 627 (emphasis added) (footnotes omitted)
(68) See id. at 626.
(69) See Michael H., 491 U.S. at 130.
(70) 507 U.S. 292 (1993).
(71) Id. at 303.
(73) Id. at 304.
(74) 511 U.S. 127 (1994).
(75) See id. at 156 (Scalia, J., dissenting).
(76) See id. at 129.
(77) Id. at 156 (Scalia, J., dissenting).
(78) Id. at 157 n.1.
(79) Id. at 163. Another case where Justice Scalia gave hints of his notions of the proper family structure is when he joined Justice Thomas's dissent in City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 737 (1995) (Thomas, J., dissenting). In this case, Scalia dissented from the majority's holding that a zoning provision that governed an area zoned for single-family dwelling units and defined `family' as persons related by genetics, adoption or marriage or a group of five unrelated persons did not fall within the Federal Housing Administration's absolute exemption for total occupancy limits. Thus, a group home of more than five unrelated recovering alcoholics and drug addicts did not violate regulations.
(80) Joseph W. Bellacosa was born September 1, 1937, the son of Italian immigrants, in Brooklyn, New York, where he grew up. He attended St. John's University for both undergraduate school and law school. He was appointed to the Court of Appeals in 1987 by then Governor Mario Cuomo. He and his wife Mary, have three children See The New York Red Book 412 (93rd ed., 1995).
(81) 660 N.E.2d 397 (N.Y. 1995).
(82) See id. at 405.
(83) This is very interesting considering Titone and Bellacosa very often are on opposite sides in split decisions. See Bierman, supra note 9, at 1440 (showing that in three of the five terms studied, Bellacosa and Titone were the pair of Judges least often in agreement).
(84) See In re Jacob, 660 N.E.2d at 406.
(85) See id. at 411.
(86) Id. at 408 (emphasis added).
(87) See supra notes 49-69 and accompanying text (discussing Justice Scalia's opinion in Michael H.).
(88) In re Jacobs, 660 N.E.2d at 409 (emphasis added).
(89) Id. at 412 (emphasis added).
(90) See id. at 409-10. This is similar to what Scalia expresses in Reno U. Flores, 507 U.S. 292 (1993). See also supra notes 70-73 and accompanying text.
(91) In re Jacobs, 660 N.E.2d at 410 (emphasis added).
(92) See, e.g., In re Dale P., 638 N.E.2d 506 (N.Y. 1994) (holding that parental rights of a mother who abandoned a child at birth can be terminated in order to effectuate adoption proceedings); Ronald FF. v. Cindy GG., 511 N.E.2d 75 (N.Y. 1987) (holding that visitation to a biological stranger may not be granted).
(93) 604 N.E.2d 99 (N.Y. 1992).
(94) See id. at 104-05.
(95) Vito J. Titone was born July 5, 1929, the son of Italian-Sicilian immigrants, in Brooklyn, New York, where he grew up. He attended New York University, where he received his B.A., and St. John's University School of Law, where he received his J.D. He and his wife, Margaret, have four children. See The New York Red Book, supra note 80, at 411-12.
(96) "Liberal" means that Titone will usually vote a certain way in certain types of cases. For example, in criminal cases, Titone overwhelmingly favors the defendant, which in modern day parlance means that his voting record is "liberal" on the issue. See Bierman, supra note 9, at 1419. The same can be said for Titone in civil liberties cases, in which favoring the individual over the state is considered "liberal." See id. at 1422.
(97) See John Caher, N. Y Top Court Gives Gays Right to Adopt, Times Union (Albany, N.Y.), Nov. 3, 1995, at A1.
(98) 660 N.E.2d 397, 406 (N.Y. 1995) (Bellacosa, J., dissenting); see also supra notes 82-91 and accompanying text (outlining the substance of Judge Bellacosa's argument).
(99) Robert O., 604 N.E.2d at 106 (Titone, J,, concurring).
(100) Id. (emphasis added).
(101) Id. at 107 (citation omitted).
(102) 550 N.E.2d 420, 431 (N.Y. 1989) (Titone, J., dissenting).
(103) See id. at 428-30.
(104) Id. at 435 (emphasis added).
(105) Id. at 430 n.6.
(106) Id. at 435 n.3 (emphasis added).
(107) 638 N.E.2d 963 (N.Y. 1994).
(108) See id. at 968 (Titone, J., concurring).
(109) See id. at 968-70.
(110) Id. at 968. To believe "wholeheartedly" that the "law" is something, one must take into account what is in that person's heart; in other words, the beliefs a person holds.
(111) 491 U.S. 110, 118-19 (1989).
(112) See In re Baby Boy C., 638 N.E.2d at 969-70 (Titone, J., concurring).
(113) Id. at 970 (emphasis added). Judge Bellacosa dissented in this case, but not because he disagreed with Judge Levine's majority articulation of the applicable principles of law. See id. (Bellacosa, J., dissenting). To him, the extraordinary facts of the case warranted equitable relief. See id.
(114) 543 N.E.2d 49 (N.Y. 1989).
(115) See id. at 54.
(116) See Crispino, supra note 17, at 20.
(117) See Campisi, supra note 14, at 313 (presenting a table of Italian family characteristics and functions). (118) See Braschi, 543 N.E.2d at 54.
(119) Id. (emphasis added).
(120) Id. (citing Webster's Ninth New Collegiate Dictionary 448 (1984)).
(121) 665 N.E.2d 145 (N.Y. 1996).
(122) See id. at 150-52.
(123) See id. at 150-51.
(124) Id. at 151.
(126) See id. at 151-52.
(127) See Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175 (1989).
(128) See infra notes 140-50 and accompanying text (describing some of these opinions).
(129) See Rolle, supra note 17, at 112. Some scholars have attributed Scalia's preference for strict rules to his deeply Catholic upbringing. For example, Kannar wrote: The experience of growing up Catholic in pre-Vatican II America was that of inhabiting a world of quaint legalisms," similar to that created by a "quaint" originalist Constitution.... ... In Scalia's generation, traditional Catholic education and traditional legal education thus conspired to promote an exceptionally strong respect for "the rules laid down" even if, indeed especially if, the rules laid down seemed "quaint." Kannar, supra note 8, at 1314-15. Cf. Donald L. Beschle, Catechism or Imagination: Is Justice Scalia's Judicial Style Typically Catholic?, 37 Vill. L. Rev. 1329, 1333 (1992) (testing the assumption that Scalia provides 'the most likely model of a Catholic judicial style").
(130) Scalia, supra note 127, at 1180. Scalia is such an ardent supporter of these rules that he also states that "even a bad rule is better than no rule at all." Id. at 1179, See also Antonin Scalia, Assorted Canards of Contemporary Legal Analysis, 40 Case W. Res. L. Rev. 581, 593 (1989-1990) (stating that "[o]f course it is the essence of the judicial function to draw lines, because it is the essence of the judicial function to be governed by lines").
(131) Scalia, supra note 127, at 1180-81.
(132) See Planned Parenthood v. Casey, 505 U.S. 833, 992 (1992) (Scalia. J., dissenting in part) (criticizing the use of the "undue burden" test because it allows judges to implement personal preferences).
(133) See Scalia, supra note 127, at 1178.
(134) See id. at 1179. The only checks on the arbitrariness of federal judges are the insistence upon consistency and the application of the teachings of the mother of consistency, logic.... [C]ourts apply to each case a system of abstract and entirely fictional categories developed in earlier cases, which are designed, if logically applied, to produce "fair" or textually faithful results. Scalia, supra note 130, at 588-89.
(135) See supra note 130 and accompanying text.
(136) See Scalia, supra note 127, at 1180.
(137) Mariano, supra note 46, at 239.
(138) See, e.g., Babbitt v. Sweet Home Chapter of Communities for a Great Or, 115 S. Ct. 2407, 2421 (1995) (Scalia, J., dissenting) (arguing that the word "harm" in the Endangered Species Act should be interpreted as the commission of an act and not the broader omission of an act as applied to private land owners).
(139) See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 980 (1992) (Scalia, J., concurring in part and dissenting in part) (citing longstanding traditions as helpful in constitutional analysis); see also Kannar, supra note 8, at 1298 ("Because [Scalia] has [articulated his views on Constitutional analysis) in terms that are both unusually specific and unusually self-revelatory, it now becomes possible to explore his constitutional identity in the context of his personal one, to consider what he thinks in the context of who he is."); Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849 (1989).
(140) 495 U.S. 604 (1990).
(141) See id. at 619.
(142) Id. at 610.
(143) Id. at 629-30 (Brennan, J., concurring).
(144) See id. at 622-27 (Scalia, J.).
(145) See id. at 625.
(146) Id. at 625-26.
(147) Id. at 625. Scalia further mocked Brennan's position: Justice Brennan's long journey is a circular one, leaving him, at the end of the day, in complete reliance upon the very factor he sought to avoid: The existence of a continuing tradition is not enough, fairness also must be considered; fairness exists here because there is a continuing tradition. Id.
(148) See, e.g., Board of Educ. of Kiryas Joel v. Grumet, 512 U.S. 687, 748'(1994) (Scalia, J., dissenting) (expressing displeasure at the Court for making law in an ad hoe fashion, thus failing to establish rules for future cases); Lee v, Weisman, 505 U.S. 577, 641 (1992) (Scalia, J., dissenting) (arguing that the Court should lay down a rule that the only time the Establishment Clause is violated is when a person is coerced by "force of law" to engage in a religious practice or when the governmental action is "sectarian").
(149) See, e.g., Barnes v. Glen Theatre, Inc., 501 U.S. 560, 572 (1991) (Scalia, J., concurring) (arguing that a general law regulating conduct (in this case, nude dancing) that is not aimed specifically at expression is not subject to First Amendment scrutiny); Employment Div., Dept. of Human Resources v. Smith, 494 U.S. 872, 890 (1990) (Scalia, J.) (stating that a general law banning peyote use was not directed at the free expression of religion).
(150) See, e.g., Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 219-20 (1995) (Scalia, J.) (holding that Securities Exchange Act [sections] 27A(b) violated the Framer's original intent by commanding federal courts to reopen final judgments).
(151) See People v. Dixon, 647 N.e.2d 1321, 1328 (N.Y. 1995) (Bellacosa, J., dissenting). In Dixon, the Court of Appeals held that a criminal defendant is entitled to a Wade hearing even though the identification was the result of an independent and instant act of the victim, and not the result of a police arrangement. Bellacosa strongly dissented, "because it erect[ed] a virtual per se pretrial hearing entitlement." Id. at 1325. Bellacosa believed that such a per se rule would backlog the criminal process. See id. For other cases in which Bellacosa expresses his dissatisfaction with per se rules, see Denburg v. Parker, Chapin, Flattau & Klimpl, 624 N.E.2d 995, 1002 (N.Y. 1993) (Bellacosa, J. dissenting) (advocating a flexible rule interpretation); People v. Duuvon, 571 N.E.2d 654, 657 (N.Y. 1991) (Bellacosa, J.) (stating that civilian identifications at crime scenes do not "lend themselves to per se ... rules"); People v. Cain, 556 N.E.2d 141, 145 (N.Y. 1990) (Bellacosa, J., dissenting) (noting that per se procedural rules may allow for unwarranted third party benefits for a defendant)
(152) Timothy B. Lennon, Note, Joseph W. Bellacosa: Cardozo's Knight-Errant?, 59 Alb. L. Rev. 1827, 1831 (1996).
(153) See Joseph W. Bellacosa, The Nature of the Judicial Process Revisited: "Three Little Words," N.Y. St. B.J., Sept.-oct. 1992, at 14. Judge Bellacosa wrote about Justice Benjamin Cardozo's views on judging: "Cardozo's analysis of the process produced his metaphorical observation that Judges are not knights-errant wandering the countryside looking for cases or causes to fulfill their vision of good versus evil. In the role and function of adjudication, Judges must decide only the controversies people bring into their courthouses." Id. He later comments that courts must be obeyed because
[d]efiance of the Rule of Law ... is intolerable and, of course, legally contemptuous. Disrespect for the Rule of Law and the Adjudicative Process by populist polemics and techniques is also a very bad trend. Such activity is counterproductive and contrary to our greatest traditions.... The Judicial Branch, relatively soft-spoken and often interdicted, remains the bright and great equalizer and bulwark between oppression from majoritarian republic democratic rule and the rights of individuals, minorities, the disenfranchised and just plain powerless folks. Id. at 15-16.
(154) 507 N.E.2d 1068 (N.Y. 1987) (Bellacosa, J.).
(155) See id. at 1072.
(156) See id. at 1070.
(157) See id. at 1069.
(158) See id.
(159) Lennon, supra note 152, at 1837 (quoting Marrero, 507 N.E.2d at 1069).
(160) 654 N.E.2d 954, 962 (N.Y. 1995) (Bellacosa, J., dissenting).
(161) See id. at 960-61.
(162) See id. at 964 (Bellacosa, J., dissenting).
(163) Id. (quoting Quill Corp. v. North Dakota, 504 U.S. 298, 315-16 (1992)).
(164) See Lennon, supra note 152, at 1840-41.
(165) See Bierman, supra note 9, at 1419; see also, Bonventre, supra note 9, 14 Pace L. Rev, at 441 n.534 (citing Bellacosa's heavy voting for the prosecution in 1990, in 94% of the cases); id. at 440-41 (citing Bellacosa's 1991 record); Gary Spencer, A Winning Year for Prosecutors: Does Trend Mark a Permanent Shift?, N.Y. L.J., Oct. 10, 1995, at S3 (citing Bellacosa's very pro-prosecution voting record in the 1994-1995 term).
(166) Bellacosa, supra note 153, at 15.
(167) For my Italian-American readers, perhaps this illustrates my point:
Italian Father: "There will be no language like that in my house!" Italian son: "But I heard you use it when you were arguing with Mom last night."
This inconsistency in the application of rules is not the only one exhibited by Italians. See Luigi Barzini, From Caesar To The Mafia 158-69 (1971) (discussing the Italian "mistress").
(168) See Scalia, supra note 130 and accompanying text.
(169) See, e.g., People v. Branch, 634 N.E.2d 966, 969 (N.Y. 1994) (Titone, J., dissenting).
(171) See id. at 970.
(172) See id. at 972.
(173) 571 N.E.2d 654, 657 (N.Y. 1991) (Titone, J., concurring).
(174) See id. at 657-58.
(176) See Bierman, supra note 9, at 1419 (discussing Titone's pro-defendant voting record).
(177) See John D. Powell, Note, Vito J. Titone: Stalwart or Curmudgeon?, 59 Alb. L. Rev. 1803, 1814 (1996) ("Whether in cases regrading searches and seizures, pretrial identifications, grand jury hearings, trial procedures, or Rosario claims, Titone has voted not to allow deviations from specific procedures where important individual rights are potentially at stake.").
(178) 587 N.E.2d 255 (N.Y. 1991).
(179) See id. at 258, 262 (Titone, J., dissenting).
(180) See id. at 262.
(181) See, e.g., People v. Luperon, 647 N.E.2d 1243, 1248 (N.Y. 1995) (Titone, J.) ("[T]his Court is not privileged to defer to law enforcement's resource-allocation choices; rather, it is dutybound to determine whether the law enforcement arm of government has acted in compliance with [the statute's] command."); People v. Favor, 624 N.E.2d 631, 639 (N.Y. 1993) (Titone, J.) (stating that the defendant has a statutory right to be present at a hearing to determine which prior convictions can be used by the prosecution); People v. Scalza, 563 N.E.2d 705, 710 (N.Y. 1990) (Titone, J., dissenting) (arguing that delegation of pretrial motions to judicial hearing officers is invalid because of the importance of the Constitutional rights involved); People v. Darby, 553 N.E.2d 974, 978 (N.Y. 1990) (Titone, J., concurring in part and dissenting in part) (stating that a District Attorney's failure to notify a grand jury that a defendant's inculpatory statement may not be let in at trial was a violation of the defendant's right to an informed grand jury, despite the statement later being introduced at trial).
(182) See Vito J. Titone, State Constitutional Interpretation: The Search for an Anchor in a Rough Sea, 61 St. John's L. Rev. 431, 438-39 (1987).
(183) Id. at 438.
(184) Id. at 439 (emphasis added).
(185) Compare Titone's dissent in Ware u. Valley Stream High School District, 550 N.E.2d 420, 431 (N.Y. 1989), supra notes 102-06 and accompanying text, with Titone's statement in his law review article, supra note 182, at 469 ("[T]he method [of judicial interpretation] should foreclose, as much as is humanly possible, the injection of the judges' personal feelings, values and beliefs into the ultimate disposition."). Also compare Scalia's opinion in Michael H. v. Gerald D., 491 U.S. 110 (1989), supra notes 49-69 and accompanying text, with Scalia's dissent in Romer v. Evans, 116 S. Ct. 1620, 1629 (1996) (Scalia, J., dissenting). Romer struck down, as violative of the Fourteenth Amendment's Equal Protection Clause, a Colorado referendum which prohibited all legislative, executive, or judicial action at any level designed to protect homosexual persons from discrimination. See Romer, 116 S. Ct. at 1629. Scalia quoted the following passage from Murphey v. Ramsey, 114 U.S. 15, 45 (1885):
"[C]ertainly no legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth, fit to take rank as one of the co-ordinate States of the Union, than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union for life of one man and one woman in the holy estate of matrimony; the sure foundation of all that is stable and noble in our civilization; the best guaranty of that reverent morality which is the source of all beneficent progress in social and political improvement."
Romer, 116 S. Ct. at 1636-37 (emphasis added) (alteration in original). Scalia then adds, however, that, "I would not myself indulge in such official praise for heterosexual monogamy, because I think it no business of the courts (as opposed to the political branches) to take sides in this culture war." Id. at 1637. It is ironic that Scalia makes such a statement when he knows that the words and passages in his judicial opinions will go into the United States Reports, an official government document!
(186) See Cardozo, supra note 1, at 167.
(187) 491 U.S. 110 (1989).
(188) See also Romer, 116 S. Ct. at 1631 (Scalia, J., dissenting),
(189) Cardozo, supra note 1, at 167.
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|Title Annotation:||State Constitutional Commentary: An Interdisciplinary Examination of State Courts, State Constitutional Law, and State Constitutional Adjudication|
|Author:||Lauricella, Peter A.|
|Publication:||Albany Law Review|
|Date:||Aug 6, 1997|
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