New Report: NY’s Constitutional Cap on Supreme Court Spawns Dysfunction

NEW YORK — Researchers say in a new report, Backdoor to the Bench, that the cap on the number of Supreme Court judges in New York’s constitution has created a double dysfunction. The scarcity of judges causes lawsuits to linger for years and crushing case loads that have forced top administrative judges to overuse a secretive and highly subjective process to select acting judges as a workaround. 

Removing the constitutional cap is the only structural way to reduce dependence on these Acting Supreme Court Justice (ASCJ) promotions, improve access to justice for New Yorkers, and provide caseload relief to judges across the state. While constitutional reform is pending, court leadership can immediately increase transparency by publishing rosters of ASCJs, disclosing evaluation panel memberships, and demonstrating that criteria are followed for promotions.

The New York Constitution fixes Supreme Court judgeships at one per 50,000 residents, leaving courts — especially in New York City and its suburbs — permanently understaffed. Court administrators then fill the gap by promoting judges, giving them the same power as elected Supreme Court judges. 

The promotion process is entirely opaque to the public and must also be reformed as efforts are underway to lift the cap. New Yorkers have no way to know whether these promotions reflect merit and caseload needs—or political pull and personal ties.

Key Findings

• ASCJ headcounts have numbered in the hundreds each year since 2010 and fluctuate based on court leadership.
  
• Once promoted, 97% of judges remain in ASCJ status without interruption, turning what is supposed to be a temporary assignment into a long-term post in practice.
  
• ASCJ capacity—and Supreme Court judicial resources more broadly—are concentrated in less-burdened upstate courts, while New York City and the suburbs shoulder heavier dockets with comparatively fewer resources.

Key Recommendations

• Guarantee caseload relief and access to justice for New Yorkers by passing the Uncap Justice Act constitutional amendment and authorizing sufficient new Supreme Court seats.
  
• Increase evaluation transparency by publishing the names of panel members and the procedures they use.
  
• Set clear criteria and report outcomes through public guidelines, rosters, and annual reports on promotions and renewals.
  
• Open the process to consultation by inviting public input and documenting feedback received.

Oded Oren, Executive Director and Founder, Scrutinize:

“The transparency of New York’s judiciary has long been too limited. We have previously highlighted how little the public can see of consequential judicial decisions in criminal courts. This report reveals another dimension of opacity: an internal promotions process that decides who wields Supreme Court power, yet takes place entirely out of public view. New Yorkers deserve clarity not only about judicial decisions, but also about the hidden processes that decide who gets to make them.”

Rachael Fauss, Senior Policy Advisor, Reinvent Albany:

“The data show that the constitutional cap on supreme court has created an entrenched and unequally distributed promotion process that needs to be reformed while a constitutional amendment is sought to lift the cap. The Legislature has passed a bill to lift the cap once, and needs to do so again in 2026.”

Click here to view the report on Scrutinize’s website. 

Click here or below to view the report as a PDF.