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For reasons that aren’t important, I was engaged in a discussion of Connecticut’s Supreme Court and the tone of recent opinions.

This led to a discussion of retired Justice Berdon, Gov. Lowell Weicker’s first nominee to the Supreme Court, and a prolific writer who wore his opinions on his sleeve (and pen). I then engaged in a quick survey of CT Supreme Court dissents since 2000 to see if the Court has changed since his departure.

First on Justice Berdon. His outspokenness was recognized as early as 18 months into his tenure on the highest court.

Justice Berdon, Mr. Weicker’s first nominee to the court, has emerged in the last 18 months as one of the most outspoken dissenting voices in its history, legal experts say, skewering the majority — often in disparaging terms — time and again. Of 147 cases Justice Berdon heard through last month, he issued his own separate dissenting opinion 39 times, an unprecedented number on this court.

“A couple members of the majority haven’t liked my choice of words,” Justice Berdon said in an interview. “But I’m going to say exactly what I think and what I feel should be said.”

Justice Berdon, a soft-spoken man who wears bow ties and so reveres Adlai Stevenson that he named his only son Peter Adlai Berdon, said he believes that there is an obligation to dissent in many cases. A cynical public must be shown that justice is being done, he said, and that issues are receiving a real public debate.

“It’s important that if you disagree with the majority, you don’t merely go along to tag along,” he said. “You have an obligation to put in your views and words so the the public can know what the other side is. It’s a constitutional obligation.”

And he did it with such bite:

One might debate, though, whether there is a constitutional requirement to criticize one’s colleagues with such obvious relish. In one dissent last year, for example, in a case challenging the method used in reapportioning State House and Senate seats, Justice Berdon began with the pronouncement that “today the majority trivializes the State Constititution,” and went on to disparage the majority’s “simplistic” reasoning and its “confusion and failure to understand the case that is before us today” and giving “at best, a cursory review” of the facts of the case.

Now let’s turn to the Court since his departure in 2000. Since then, in eight years, there have been only 55 dissents in criminal cases. Compare that to the 39 dissents in 18 months.

Of those 55 dissents, 19 were penned by Justice Katz. Also in that 8 year span, the Supreme Court heard (more than a few times), the appeals of Michael Ross, Richard Breton, Todd Rizzo, Ivo Colon, Russell Peeler and Courchesne, all capital appeals.

In the last three years (2006-2008), there have been only 8 dissents in criminal cases - and only 2 from 2007 onwards.

Back to Berdon. That NYTimes article I linked to above predicted a liberal turn to the CT Supreme Court:

Some students of the court say the early suggestions are that Justice Berdon may be pointing the way toward a stricter defense of civil rights, and that if other Weicker nominees follow that trend, Connecticut could emerge with one of the more liberal courts in the nation. Justice Berdon, who is 63, faces mandatory retirement in 1999, when he turns 70, but Justices Katz and Norcott, and Mr. Palmer, if he is appointed, could serve for decades.

And it may have been, during Justice Berdon’s tenure. But after his departure, it seems that the Court has returned to what it was prior to his appointment:

The Connecticut Supreme Court, the state’s highest appeals panel, has not been a place of flash and dazzle. Known until the 1960’s by the unfortunate formal title of the Supreme Court of Errors, the seven-member panel has been seen as a conservative, often technical-minded body that generally shuns sweeping constitutional pronouncements in favor of unanimous, bland consensus.

What does all of this mean? Well, very little. The dissents in the last eight years are varied: a “liberal” judge like Justice Katz has voted against defendants twice, whereas “conservative judges” Sullivan, Palmer and Zarella have voted for defendants 8-9 times.

Where it interests me (and possibly you) is in the capital arena. The Court’s decision in State v. Courchesne will mark the first time in a long, long time that the entire Supreme Court panel sat on a capital appeal with the constitutionality of the death penalty before it. Of further interest is that of the current 7 members, only 3 have ever expressed an opinion on capital punishment: Justices Katz and Norcott have frequently dissented and Justice Palmer has voted to uphold the death penalty once.

Justices Rogers, Vertefeuille, Zarella and Schaller have not yet had the opportunity to decide the constitutionality of the death penalty - and it certainly will be interesting to see where they stand and how they come down on the issues.

There are quite a few important and interesting issues pending before the Supreme Court right now and the next year or so will be quite telling as to how the Rogers Court has shaped up. Will it sink further into the abyss of congenial consensus or will a Justice Berdon emerge?

On that note, it is only fitting to leave you with this sad concluding paragraph from Justice Berdon:

This probably will be the last case before my retirement in which I will have the opportunity to express my views with respect to the dreadful punishment of death and related matters. Civilized nations have barred this horrible punishment. Some of our sister states have also banned death as a punishment, including all of the New England states except one –  Connecticut. I have pointed out in my dissents in State v. Cobb, 251 Conn. 285, 523, 743 A.2d 1 (1999), State v. Webb, 238 Conn. 389, 552-54, 680 A.2d 147 (1996), State v. Breton, 235 Conn. 206, 262, 663 A.2d 1026 (1995), and State v. Ross, 230 Conn. 183, 294, 646 A.2d 1318 (1994), cert. denied, 513 U.S. 1165, 115 S. Ct. 1133, 130 L. Ed. 2d 1095 (1995), that the penalty of death fails to comport with contemporary standards of decency and that it constitutes cruel and unusual punishment in violation of our state constitution. I leave this court heartbroken because, as a result of one vote, 24 Connecticut is not among those enlightened states and nations to put an end to the death penalty. But those who would have it must live with this stain of blood. The determination of the constitutionality of the death penalty is not in the control of the legislature but, rather, in this court and the majority has failed to recognize its unconstitutionality.

State v. Griffin, 251 Conn. 671, 741-42 (1999).