“If they want hell, I will help them”

(it is my job)

A lecture with the Hon. Robert Smith, New York Court of Appeals

Last week, the Federalist Society hosted a lecture by the Hon. Robert S. Smith of the New York Court of Appeals, New York’s highest court.

Addressing a crowd of roughly forty attendees, Judge Smith began by expressing his approval for the Federalist Society and its adherence to the tenants of freedom, federalism, and judicial restraint. He further explained how the philosophy of the Federalist Society is broadly divided into conservative and libertarian camps, a division which he said reflects his own personal viewpoints and his approach to judicial decision-making.

Photo Credit: Michael Zebrowski, chair of the BLS Federalist Society

the philosophy of the Federalist Society is broadly divided into conservative and libertarian camps, a division which he said reflects his own personal viewpoints and his approach to judicial decision-making.

However, Judge Smith strongly emphasized the importance of judicial restraint, claiming that too often, the public able to easily discern the partisan loyalties of Appellate appointed judges. Smith quoted Supreme Court Justice Oliver Wendell Holmes who declared, “…if my fellow citizens want to go to Hell, I will help them. It’s my job.” The imposition of personal ideology, said Judge Smith, is improper. This belief, he said, has had “terrible results” in some of his decisions, citing his defense of rent-control statutes despite his personal abhorrence to regulations that restrict free markets.

“…if my fellow citizens want to go to Hell, I will help them. It’s my job.”

Yet, in narrow & restrained contexts, substantive judgment calls are demanded of judges, which is when Judge Smith said that his unique conservative / libertarian blend shared by the Federalist comes to light. He expressed how these two perspectives align, such as in many tort cases where both schools of thought generally seek to avoid government intervention by favoring defendants.

But when justices struggle with this duality of moral judgment versus judicial restraint, philosophies, interesting opinions can result.

To illustrate this, Judge Smith cited two recent & well-publicized criminal cases that he heard: People v. Dunbar, and Nguyen v. Holder.

People v. Dunbar

People v. Dunbar addressed the limits that Miranda rights have on law enforcement. As the sole dissenter of the seven-member panel of the Court of Appeals, the case brought out the conservative in Judge Smith. The issue in Dunbar was whether Queens County police should be able to preface Miranda warnings with “creative” invitations for confessions.

The issue in Dunbar was whether Queens County police should be able to preface Miranda warnings with “creative” invitations for confessions.

Judge Smith opined that this practice should be allowed on the basis that defendants are still being informed of their rights since they are still receiving full Miranda warnings. He said that preventing confessions under these forceful interrogation forms merely prevents suspects from waiving their right to silence.. Judge Smith’s criticism of the case’s holding stems from concern over letting the guilty occasionally walk free because of an overzealous application of Miranda. The police, he said, should still be able to persuade people into confessing.

Judge Smith’s criticism of the case’s holding stems from concern over letting the guilty occasionally walk free because of an overzealous application of Miranda. The police, Smith said, should still be able to persuade people into confessing

Nguyen v. Holder

Nguyen v. Holder highlighted his more libertarian side. Nguyen asked whether New York law forbids the marriage of a half uncle to his half niece. Specifically, although the law forbids uncles from marrying nieces, and forbids half siblings from marriage, is it unlawful for a half-uncle to marry his half-niece?

If the law forbids uncles from marrying nieces, and forbids half siblings from marriage, is it unlawful for a half-uncle to marry his half-niece?

While admitting that the facts of any incest case are always at least initially unpalatable, Judge Smith quickly explained that his reasons for deciding that the law did not forbid any such relationship was well grounded in both rational textual interpretation as well as a worthy aspiration to toleration and benevolence. Judge Smith differentiated the facts of the case from “hardcore incest,” and explaining this through the lens of his libertarian beliefs he said, “My attitude to this case was led by the philosophy that people should lead the kinds of lives that they want to, so much that they aren’t hurting anyone.”

“My attitude to this case was led by the philosophy that people should lead the kinds of lives that they want to, so much that they aren’t hurting anyone.”

Judge Smith said that he has genuinely enjoyed his years as an appellate judge. Unfortunately, he has reached New York’s mandated judicial retirement age of 70 and will be stepping down soon. He said that he “would like to stay on the bench” but also recognizes that “everyone leaves a job too soon or too late — and too soon is better.”

“Everyone leaves a job too soon or too late — and too soon is better.”

Judge Smith will be stepping down from the bench in August 2015. He intends to continue practicing law after he steps down from the bench.