Lawmakers want to raise Supreme Court justice cap, but judges aren’t on board

Legislators rallied in support of a bill to raise the cap on Supreme Court judges on Wednesday, a move that the judges themselves aren’t fully behind. Assemblymember Alex Bores/Twitter 

By Ryan Schwach

Legislators are taking another shot at a constitutional amendment that they hope could lighten caseloads in the state’s busy courts by adding more Supreme Court judges.

But some judges say the fix may only make the problem worse.

With the end of the legislative session days away, legislators are hoping to push through the No Cap Act, which would remove the state’s cap on the amount of Supreme Court judges that can be appointed to any one particular district.

The legislators argue that adding more judges to the bench will allow more hands to take on the large backlog of cases, and will reverse a nearly two-century old provision that they say is long outdated.

But, state and city judicial associations don’t endorse the legislation, saying it will pull power away from the judicial branch and the people who vote them on to the bench.

Currently, the constitution allows for one Supreme Court justice per 50,000 residents of a judicial district. The cap was originally enacted in 1846, and later amended in 1961.

The formula currently allows for 43 elected Supreme Court justices in the 11th Judicial District, which covers Queens County. Six years ago, there were only 39 Supreme Court justices allowed in the district, per the constitution. However, the legislature was able to make statutory changes, adding an additional justice in 2018, 2019, 2021 and 2022.

The total elimination of the cap has been proposed before, and has already passed the State Senate. It also has been gotten approval from Governor Kathy Hochul. But for the second straight year, the bill is in danger of faltering in the Assembly.

On Wednesday, state officials rallied in Albany calling to get the bill, which would amend the state constitution, over the finish line.

“We have a massive backlog of cases throughout New York State and particularly in New York City, and while there's a number of reasons for that backlog, one of many is just not having enough judges,” said Manhattan Assemblymember Alex Bores, the lead sponsor of the legislation.

The legislators argue that a limited number of Supreme Court judges on benches across the city and state have led to backlogs and delays, and in many cases judges moving away from their elected roles to fill a seat on the Supreme Court.

The legislators argue that by simply adding more judges, it will lighten the load.

“The solution is simple: lift the cap, create more judges, clear the backlog,” said Manhattan State Senator and Judicial Committee Chair Brad Hoylman-Sigal, who sponsors the bill on the Senate side.

According to Hoylman-Sigal, at Supreme Court in Manhattan, the average judge has 2,500 cases on their docket and another 400 motions awaiting their decision on any given day.

Part of the reason legislators believe in amending the constitutional provision is simply because of its age.

“It's 180 years old, itt doesn't make any sense,” said Queens Assemblymember David Weprin.

Hochul made eliminating the cap a priority in her State of the State Address earlier this year.

“Our court system has been plagued by delays and backlogs that interfere with the swift administration of justice and exacerbate our public safety challenges,” Hochul said in her State of the State address book. “Part of the problem is an antiquated constraint, embedded in the constitution, on the number of Supreme Court judges, which has a cascading impact on both Supreme Courts and lower courts.”

Despite the support of many legislators, the governor, and the New York City Bar Association, the legislators’ attempt to end the cap on Supreme Court judges has gained notable opponents – Supreme Court judges.

Both the president of the Association of Justices of the Supreme Court of the State of New York and president-elect of the Association of Justices of the Supreme Court of the City of New York oppose the legislation, arguing that although it has good intentions, it gives the legislature too much power in determining where judges are seated.

“We share the goal of ensuring that the number of Supreme Court justices is responsive to the needs of the public,” said Justice Verna Saunders, the president of the State Association, said in a statement made available to the Eagle.

“However, we are concerned the proposed amendment removing the population requirement would not protect our court system from inappropriate political motivations which may arise in deciding where to assign new seats,” she added. “Alternate proposals, including one which would increase the number of justices by lowering the threshold of 50,000 residents for creating a new seat, would create hundreds of new seats while avoiding potential politicization in the creation of judicial positions.”

Queens Supreme Court Justice Carmen Velasquez, the president-elect of the City Association and current president of the Queens Association of Supreme Court Judges, has the same worries.

“We are strongly opposed to the bill,” she told the Eagle in a phone interview.

Velasquez argues that eliminating the cap would give too much political power to the legislative branch, and would allow judges from more populated counties like Queens to be moved to places with higher case loads like Manhattan – a practice that is already occurring, but she says would get worse if the amendment were to go through.

While Velasquez would love to have more judges on the bench to assist with the backlogs, she says it is an “illusion” that the amendment would actually lead to more judges, and instead would just lead to judges moving out of the places they were elected.

“We truly believe that it divests the community,” she said. “A judge can be taken out from one place and put in another location just because they think they need to – that's not how we work.”

“Population requirements have historically protected populated communities and communities of color,” Velasquez said. “The proposed amendment focuses on weighted caseloads and complexity of cases in the commercial division, but fails to take into account the time required to handle cases with unrepresented litigants in populated communities.”

Since the bill is a constitutional amendment, it would need to be passed into law in two straight legislative sessions before going to a statewide referendum vote. Even if the legislature can pull it through before the end of session, it will be some time before the results of its passing actually go into effect.

The Unified Court System did not respond to requests for comment on Wednesday.

When asked about the plan following the governor’s State of the State, Al Baker, a spokesperson for the Office of Court Administration, said the system “looks forward to reviewing the proposals the governor outlined in her speech today.”