Committee Reports

Repeal the Cap and Do the Math: Why we need a modern, flexible, evidence-based method of assessing New York’s judicial needs



For more information, watch our October 2023 event “Increasing the Number of Judges in New York: Repeal the Cap and Do the Math.”


Advocacy Alert: Pass the No Cap Act

No Cap Act Supporters

Bar Association Statement of Support – June 2024


A.5366 (M. of A. Bores) / S.5414 (Sen. Hoylman-Sigal) – Authorizes the legislature to increase the number of justices of the supreme court in any judicial district (NYS 2024)


Bill Received First Passage by the Legislature – June 6, 2024 (Click here to read the City Bar’s statement)



This report (the “Report”) examines and addresses the need for the New York State Legislature (the “Legislature”) to provide the People of the State of New York with a sufficient number of judges to do justice. Throughout its history, New York State has struggled with an insufficient number of judicial seats necessitating stopgap measures that have only resulted in a complicated, overworked, and confusing court system that fails to provide justice to all.   The dire need for additional judges overall is a function of the chronic failure to provide adequate judicial resources to New York’s Unified Court System.  And while the reasons underlying such failure are manifold and multilayered, on a fundamental level, the lack of judicial resources stems largely from the constitutionally prescribed method by which the New York State Legislature determines the number of justices that can be elected to the state’s trial court of general jurisdiction—the New York State Supreme Court.  Since enacted in 1846, and as amended in 1961, Article 6 of the New York State Constitution, has set the number of Supreme Court seats—which are elected positions—for geographically-defined areas known as judicial districts by using a solely population-based ratio—i.e., one justice per 50,000 people.  The effect of such a formula is to cap the number of legislatively authorized Supreme Court seats within each judicial district, leaving the Legislature powerless to authorize additional seats to meet the growing and particular needs of the courts in such districts.  Thus, the purely population-based “constitutional cap” has proven over-simplistic, outdated, and unworkable.  Even worse, it has created a ripple effect that has impacted the entire New York Court system.  Specifically, to address the lack of resources at the Supreme Court level, the Office of Court Administration has long resorted to adopting makeshift measures that involve designating judges from other courts to sit on the Supreme Court on an “acting” basis.  Not only has this “robbing Peter to pay Paul” approach depleted these other courts of judicial resources, it has created a de facto permanent and large class of “Acting Supreme Court Justices,” sitting in a court other than the one to which they were either elected by the people or appointed by the relevant appointing authority.

In this era of metrics, the people of New York State are entitled to a modern, flexible, evidence-based method of assessing the state’s judicial needs, as is the case in many other states and the federal judiciary.  To that end, the Report makes the following recommendations which should be enacted and implemented for the proper and adequate administration of justice in New York State’s courts.

  • First, A Constitutional Amendment to Eliminate the Cap: It is undisputed that the constitutional cap on the number of elected Supreme Court Justices must be eliminated. The Report thus proposes that the constitution be modified to remove the cap in its entirety, and add language that requires the Legislature to consider whether to change the number of Supreme Court justices in any judicial district at least once every ten years.  The Report’s comparison to 49 other states and the federal courts shows that such analysis is performed even more regularly including once a year or biannually.
  • Second, Enabling Legislation: The Legislature must codify a mandatory regular systematic assessment of the courts’ specific needs as many other states and the federal courts have done. The constitutional obligation for the Legislature to evaluate judicial districts—and implicitly the number of judges—at least every ten years when there is a new census, has been consistently breached, with the Legislature increasing the number of judges only on an ad hoc basis.  The Council does not recommend how often such an evaluation must be performed in New York State, as such a decision should be informed by the cost of conducting the evaluation, which the federal courts and many states perform in-house, and other states perform using outside experts such as the National Center for State Courts.
  • Third, Annual Reporting: The Chief Administrative Judge is currently required to keep data that would enable the Legislature to perform its regular and systematic assessment, and he thus has a significant role in this process. His statutory responsibility to annually evaluate the adequacy of current court resources and issue an annual report should include a directive to analyze the number of judges in each court and request changes when appropriate.  Requesting changes in the number of judges is not currently required and has not been the practice.  This annual report would inform the Legislature in carrying out its constitutional duty to set the number of judicial seats in each court, giving the court responsibility to initially identify the need to change the number of judicial seats.
  • Fourth, Establish Assessment Methodology: The Legislature must adopt a system for assessing the judicial needs of all courts, taking into account not only population (which is the only factor currently listed in our constitution) but also translating the various caseloads, civil, and criminal, complexity of cases, out-of-court time for preparation and writing decisions, and extra time for unrepresented litigants, into a number representing the total number of judges that will be necessary at a given time to fulfill all judicial obligations. The Council’s review of the procedures for determining the right number of judges in 49 states and the federal judiciary is attached.
  • Fifth, Transparency: Information on such newly-adopted systems should be published. Most states use a “weighted caseload analysis,” which includes counting the number of cases filed and disposed, as well as the time from filing to disposition, or “clearance rate,” and assigning weights to each type of case based on complexity and other resources available to courts e.g., nonjudicial staff.  The people of New York State have the right to know the time it takes to resolve criminal cases, small claims cases, Family Court cases and others, as well as their legislators’ positions on what are acceptable clearance rates in those courts.
  • Sixth, Immediate Interim Measures: In the interim, less time-consuming statutory changes are immediately available. For example, since the number of judges in courts other than the Supreme Court is not subject to a constitutional cap, the Legislature could immediately assess the judicial needs in those courts with support from appropriate professionals, and change the number accordingly.