No doubt hoping for an easier path to confirmation by left-leaning Senate Democrats who recently rejected her first nominee for chief judge of New York, Governor Hochul has turned to a Court of Appeals associate judge whose case file includes a 70-page opinion arguing that an elephant should have the legal right to petition for release from the Bronx Zoo.

Judge Rowan D. Wilson‘s lengthy argument for effectively extending the legal rights of a human to a non-human animal did not carry the day. By a 5-2 vote, the June 2022 Court of Appeals decision In the Matter of Nonhuman Rights Project, Inc., v. Breheny turned down a petition filed on behalf of Happy, a female elephant kept at the zoo for more than 40 years, which an animal rights group sought to move to a nature preserve. The decision affirmed rulings in favor of the zoo by lower courts in “what appears to be the first case of its kind in the English-speaking world to reach so high a court,” as The New York Times reported.

Wilson, 62, a California native and graduate of Harvard University and Harvard Law School would be the state’s first black chief judge. A former Cravath Swain & Moore partner appointed to the Court by then Governor Andrew Cuomo in 2017, Wilson quickly established himself as one of its most liberal members — “a fierce defender of the rights of criminal defendants,” as described in this 2018 law review article.

Citing Wilson’s “sterling record of upholding justice and fairness,” Hochul also announced today said she would nominate Caitlin J. Halligan, a former New York State Solicitor General during the tenure of Attorney General Eliot Spitzer, to succeed Wilson as an associate judge of the top court.

Concerning the happiness of Happy

Wilson’s lengthy analysis in the elephant case requires a lot of unpacking, but it centers on his view of whether there should be limits to what is known in legal circles as “the Great Writ” of habeas corpus (Latin for “you should have the body”) a fundamental right protecting against unlawful detention and imprisonment.

In a 17-page opinion for the majority in the elephant case, then-Chief Judge Janet DeFiore made a (seemingly) indisputable, common-sense observation: “Habeas corpus is a procedural vehicle intended to secure the liberty rights of human beings who are unlawfully restrained, not nonhuman animals.” Judge Wilson, unbowed, shot back at her in the conclusion of his dissent: “When the majority answers, ‘No, animals cannot have rights,’ I worry for that animal, but I worry even more greatly about how that answer denies and denigrates the human capacity for understanding, empathy and compassion’.”

“[T]he evidence tendered by Happy demonstrates that Happy has very substantial cognitive, emotional and social needs and abilities, and that those qualities coupled with the circumstances of her particular confinement establish a prima facie case that her present confinement is unjust,” Wilson wrote. He added that “that showing is consistent with the kind of showings made by abused women and children and enslaved persons.” Indeed, precedents relating to the treatment of women, children, and slaves seem to play a central role in Wilson’s analysis. “Any discussion of slavery in the context of animal rights demands an acknowledgment of our country’s reprehensible history of denying the humanity of racial minorities,” he wrote.

Wilson attempted to deflect any suggestion that he was confusing animals with human beings. “The question here is not whether Happy is a ‘person’ — Happy is an elephant,” he wrote. The legal question, he said, was “whether the detention of an elephant can ever be so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should be made available under the common law.”

Elsewhere in his opinion, Rowan dismissed the personhood of the elephant as “irrelevant” — but also described as “unsupportable” the “contention that only humans can have rights.”

In what must have led to some uncomfortable moments in Court of Appeals chambers, Wilson’s dissent and a 21-page concurrence by Judge Jenny Rivera were coldly dismissed by Chief Judge DeFiore as “long on historical discourse but woefully short of any cogent legal analysis identifying any recognizable source of a proclaimed liberty right or so-called fundamental right to be free that they seek to bestow upon autonomous nonhuman animals.”

“Instead,” DeFiore continued, Judges Wilson and Rivera “conclude that the logical progression of our common law runs from extending habeas to ‘abused women and children and enslaved persons’ … to granting an elephant the right to bring a habeas proceeding, an odious comparison with concerning implications—as both dissenters acknowledge but one on which they nevertheless rely. We are unpersuaded.”

Suffice it to say, both as a judge and as a lawyer in private practice, Wilson has heard and litigated hundreds of matters over the past three decades. However, the case of Happy the elephant suggests he has a proclivity for pushing far beyond traditional legal boundaries.

(Adapted from an earlier Twitter thread by the author.)