It is of course anyone's right to disagree with the Court's legal or policy reasoning. That would be an opinion, to which one is entitled. But to say that Ravitch is an “illegal” Lieutenant Governor is, simply, a defiance of reality, not an opinion. You are entitled to your own opinion, not your own facts.
In our system, the State Court of Appeals is the final arbiter of official interpretation of the New York State Constitution. End of story. As far as I can tell, if for example another State agency openly defies a Court of Appeals ruling, they are in violation of the law
If we here below disagree with a Court of Appeals decision, we have two choices aside from just speaking out (which of course is also our right). One is to lobby our elected representatives to change the Constitution. Two is to lobby our elected officials to only support nominees to the Court of Appeals whose interpretations of the Constitution are closer to our own.
A similar system, of course, exists at the federal level, wherein the U.S. Supreme Court is in effect granted the power of officially interpreting the U.S. Constitution. Sometimes, the Supreme Court hands down ridiculous decisions. One example would be Dred Scott v. Sanford (60 US 593, 1863), which affirmed the Constitutionality of slavery, despite its being an affront to the fundamental American values on which our Constitution was based. Another would be the recent decision declaring that a prisoner in police custody had to specifically declare his right to remain silent, merely remaining silent wasn't invoking your right to remain silent. Of course, once you open your mouth to say something, you're waiving your right to remain silent. Another example would be Plessy v. Ferguson (163 US 537, 1896), which affirmed the Constitutionality of racially segregated schools.
Ah, but when I was a student, about a million years ago, it was popular to teach Brown v. Board of Education (347 US 483, 1954) which, in effect if not in formality, reversed Plessy and declared the racial segregation of schools to be unconstitutional and mandated the integration of schools, in a similar light. Brown, one of the most important and central Supreme Court rulings in American history, was disparaged in a depressing way.
Disagreeing with the high court of whatever the relevant jurisdiction of is a common pastime in America. Disagreeing with the Court of Appeals on the Lieutenant Governor matter is but one example. For years and years, wrote legal scholar James Pope, organized labor had developed what amounts to an alternative constitution, wherein the U.S. Constitution specifically granted the right strike (James Pope, “Labor's Constitution of Freedom,” Yale Law Journal, 1997).
I suspect that a similar article to Pope's could be written about gun rights advocates, and to a lesser degree about Conservatives in general. In the Conservative “alternative Constitution,” the 10th amendment grants all powers “not specifically delegated” to the federal government “to the States,” as opposed to how the language actually reads:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.
People sometimes like to read in “expressly delegated” and leave off “or to the people.”
Now, one could say that an alternative Constitution has developed in New York State, wherein it is not legal for a Governor to appoint a Lieutenant Governor.
The power granted to courts does, sometimes, frighten me. Some of the decisions cited above, Plessy and Dredd Scott, for example, were spectacularly bad calls, for the Constitution, for the Supreme Court itself, and for America. One of the founding fathers of New York State, Robert Yates, advocated against the ratification of the U.S. Constitution under the pen name Brutus. One of his arguments, which proved to be quite prophetic, was that the Supreme Court would have the sole power to decide the Constitutionality of laws, and to interpret the Constitution, and there would be no appeal from it. (For more detail, see Jackson Turner Main's 1961 book The Antifederalists: Critics of the Constitution, 1781-1788, and Herbert Storing's 1981 book What the Anti-Federalists Were For.)
“Brutus” was of course exactly right about the potential power of the Court. It is telling, I think, that when Thomas Jefferson, in a letter to James Madison in 1787, appeared granting a kind of veto power to the Supreme Court (similar to but not quite the same as what we now call “Judicial Review,” the ability of the Supreme Court to nullify legislation on the grounds that it violated the U.S. Constitution), that it was specifically to be with a possible 2/3 override by the Congress, highly similar to their override power over the Presidential veto.
But, the concerns of Yates and Jefferson regardless, this is the system we have. I'm sure there have been several examples of openly defying the Supreme Court's view of the U.S. Constitution (or of the Court of Appeals' view of the New York State Constitution) for that matter. In fact I think I remember hearing some years back about how the Secret Service consistently defies standard Court interpretation of the statute that prohibits threatening the life of a U.S. President, treating every threat as illegal when, the Courts say, it's supposed to include only threats that have some likelihood of being carried out.
However, the biggest example of openly defying Supreme Court interpretation of the Constitution that I can think of then-President Andrew Jackson's defiance of Worcester v. Georgia (315 US 515, 1832).
The result of Jackson's defiance, by the way, was the Cherokee Indians' famous Trail of Tears.
I find it to be potentially telling that one of the most prominent examples of open defiance of the Supreme Court was so catastrophic, and is so poorly regarded today. President Jackson had raw power at his fingertips, and the Court didn't. And at the end of the day that's really all Jackson's defiance was about. Arguably, it was the same dynamic that led to the Trail of Tears in the first place. We (America) had the power, they (the Cherokee) didn't.
One may disagree with Ravitch's appointment, on Constitutional or policy grounds. Or even just because you don't like Ravitch. Or maybe you want Senator Malcolm Smith to be Governor if David Paterson dies. (Though I can't guess why anyone would want that.)
But, please, don't call the appointment illegal. It's legal. How do we know it's legal? Because the Court of Appeals said so. You can argue it shouldn't be legal. You can point out reasons why it shouldn't be legal. You can disagree with the policy. But you can't say it's illegal and be consistent with reality.
That's the system we have. Judging by the Trail of Tears case, we appear to do better when we go with the system, and seek to change a law that we view as wrong, than when we try to somehow pretend a law isn't really a law when we disagree with it.
