From Jay to Kaye: A Portrait of New York’s Giants

From Jay to Kaye: A Portrait of New York’s Giants

5.5.2020

By Albert M. Rosenblatt

This article is part of New York Law: A View From the Bench, a special section in the May issue of the NYSBA Journal edited by Court of Appeals Associate Judge Michael J. Garcia. Read Judge Garcia’s introduction to the section here.

The task is a daunting one: to identify the historical “giants” of the state judiciary for this special edition featuring judicial perspectives on New York law. I imagined a bench – titans of the past – gazing down at the current legal landscape. But who to fill the chairs? I take some comfort in the broad grant of discretion that came with this assignment – and the charitable nature of my readers. With that in mind, here are my selections.

As with most judicial writings, I default to chronological order. We begin, of course, with John Jay, New York’s first Chief Judge. It is no surprise that Jay assumed this prestigious post, given his pivotal role in drafting New York’s first constitution, approved on April 20, 1777. Several weeks later, when Jay learned of his “election” as Chief Justice, he remarked that being Governor would be “more respectable as well as more lucrative,” but that the “object in the course of the present great contest neither has been, nor will be, either rank or money.”¹ To this day, Jay’s ideal of service remains the touchstone of New York’s highest tribunal.

Chief Justice Jay opened the first session of New York’s high court in Kingston, New York, in September 1777.² For the next two years, Jay presided over a varied docket, including a number of criminal cases.³ Although records of those proceedings are sparse, it has been said that Chief Justice Jay filled the bench with “great dignity” and “pronounce[d] the sentences of the court with becoming grace.”⁴

Next in line is America’s Blackstone, Chancellor James Kent, who served as Chief Justice of New York’s high court from 1804 to 1810, and as Chancellor of New York’s Chancery Court from 1814 to 1823. Though John Jay had a prominent role in drafting the state constitution – and breathing life into New York’s judiciary – Jay was primarily applying English and colonial law; it was Kent who became the father of American law. Kent’s Commentaries on American Law (published 1826–1830) was the standard American legal text and remains a classic work to this day.⁵

In addition to his famous treatise, Kent was responsible for a more fundamental innovation: he “introduced to New York the custom of writing opinions on significant matters and collecting them in official, state-sponsored reports.”⁶ Until that point, “[w]e had no law of our own and nobody knew what it was.”⁷ Kent’s timeless writings demonstrate the lasting import of judicial opinions and “contain the true portrait of the talents and learning” of this “sage[] of the law.”⁸

In 1923, 100 years after his retirement, a plaque was installed outside of the courtroom in Court of Appeals Hall honoring Chief Justice Kent.⁹ The tribute to Kent was one of the first commemorative acts in the Court’s new home following its relocation from the State Capitol. As aptly noted on the plaque, we are indebted to Kent for giving “the common law in its new home fresh vitality and power.”

I am sure the ceremony in Kent’s honor, held in the Court’s new home, was attended by our next giant – then-Associate Judge Benjamin Nathan Cardozo. Cardozo sat on the Court of Appeals from 1914 to 1932, serving as its Chief from 1927 to 1932. Much has been written by and about Chief Judge Cardozo, and he is remembered for enduring phrases like, “[d]anger invites rescue. The cry of distress is the summons to relief”¹⁰ and “[a] trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.”¹¹

But Cardozo’s legacy extends far beyond his memorable style. As Justice Felix Frankfurter said, “no judge in [Cardozo’s] time was more deeply versed in the history of the common law or more resourceful in applying the living principles by which it has unfolded.”¹² And, perhaps for that reason, Cardozo’s Nature of the Judicial Process will forever remain a classic. As he said in that “rhapsodic defense of judicial review,”¹³ the process of judging is one “not of discovery, but creation; and the doubts and misgivings, the hopes and fears, are part of the travail of the mind, the pangs of death and the pangs of birth, in which principles that have served their day expire, and new principles are born.”¹⁴ Although Cardozo’s influence on the development of the law extends well beyond the New York Court of Appeals, his words certainly continue to resonate there, as the Court continues to engage in that “endless process of testing and retesting” to retain “whatever is pure and sound and fine.”¹⁵

The most recent of our judicial giants, Judith S. Kaye, was the first woman to serve on the Court and had the longest tenure of any of its Chief Judges. Kaye served as an Associate Judge from 1983 to 1993, when she was elevated to Chief Judge – a position she held until 2016. Though Jay was instrumental in drafting New York’s first constitution, Chief Judge Kaye was the leading figure in the “reinvigoration of state constitutional law.”¹⁶ In this edition, Justice Erin Peradotto superbly highlights the Court’s 1991 decision, Immuno AG v. Moor-Jankowski,¹⁷ one of Kaye’s many monumental state constitutional writings.

It often takes many years to appreciate the lasting impact of a judge’s tenure, but Kaye lived to see many of her efforts bear fruit. Chief Judge Kaye invigorated New York’s judiciary, molding it into a more proactive institution. She created specialized courts designed not only to deal with particular cases but to place emphasis on particular people. Kaye’s utmost humanity permeated her judging, enhancing the wisdom and brilliance of her scholarship. And, of course, she is all the more special because so many of us knew and loved her – for her talent, her leadership, and her historic innovations.¹⁸

The portraits reprinted here (with the kind permission of Historical Society of the New York Courts) all hang in Court of Appeals Hall – among many other giants of our judiciary – looking down as the current occupants of those prestigious seats hear the cases of the day. Chief Judge Kaye noted that she felt a “special connection” to Kent because “his portrait hangs directly over my shoulder as I sit on the bench of our magnificent courtroom in Albany.”¹⁹ Years later, after leaving the bench, Kaye said: “[A]s my portrait faces John Jay’s at Court of Appeals Hall, I have a far greater appreciation of him, not only as a good statesman but also as a kind, caring and compassionate human being.”²⁰ They are undoubtedly a good match. Although we miss our beloved friend and colleague, Chief Judge Kaye left a deep and lasting legacy – as one of the true giants.

Photos reproduced with permission of the Historical Society of the New York Courts and its website: http://history.nycourts.gov. Any other use of this material is strictly prohibited. The portraits are in the collection of the New York State Court of Appeals.

Albert M. Rosenblatt, who now teaches at New York University Law School, served as an associate judge of the New York Court of Appeals from 1999 to 2007.

1. Walter Stahr, John Jay: Founding Father 80 (2005).

2. Id. at 82. In 2018, the Court of Appeals returned to its roots, convening in Kingston to mark the 200-year anniversary of the rebuilding of the historic courthouse.

3. Walter Stahr, John Jay as New York’s First Chief Justice, 5 Jud. Notice 1 (2007).

4. Id.

5. The 12th edition of Kent’s Commentaries was edited by Oliver Wendell Holmes, Jr., an Associate Justice of the United States Supreme Court from 1902 to 1932.

6. Judith S. Kaye, Commentaries on Chancellor Kent, 74 Chi.-Kent L. Rev 11, 17 (1998).

7. Id.

8. 1 James Kent, Commentaries on American Law at 496 (1826).

9. Francis Bergen, The History of the New York Court of Appeals, 1847-1932 11 (1985).

10. Wagner v International Ry. Co., 232 NY 176, 180 (1921)..

11. Meinhard v Salmon, 249 NY 458, 464 (1928)..

12. Felix Frankfurter, Of Law and Men: Papers and Addresses of Felix Frankfurter, 1939-1956 198 (1956).

13. Andrew L. Kaufman, Cardozo 210 (1998).

14. Benjamin N. Cardozo, The Nature of the Judicial Process, 166-67 (1921).

15. Id. at 179.

16. Judith S. Kaye, The Brennan Lecture, 17 Green Bag 2d 133, 134 (2014).

17. 77 NY2d 235 (1991).

18. Our guest editor, Judge Michael J. Garcia, served as a law clerk to then-Associate Judge Kaye, launching his eminent career in public service – including as United States Attorney for the Southern District of New York and now as Associate Judge of the New York Court of Appeals.

19. Kaye, Commentaries on Chancellor Kent at 11.

20. Judith S. Kaye, Kaye on Jay, 8 Jud. Notice 9 (2012).