Politicians are gunning for this 1803 precedent

The independent judiciary is...

Posted: Apr 12, 2018 8:01 AM
Updated: Apr 12, 2018 8:01 AM

The independent judiciary is under attack. Instead of willingly complying with recent election law rulings, Republican politicians in Pennsylvania and Wisconsin have sought to undermine the judges who issued decisions with which they disagreed, purely for electoral gain. These actions are an egregious attack on the separation of powers and the very legitimacy of the judicial branch.

In Pennsylvania, the state supreme court issued a lengthy decision holding that the state's congressional redistricting map violated the state constitution by unfairly favoring Republicans. The map was a partisan gerrymander that essentially took away meaningful representation and the right to vote for many of the state's citizens. The court's decision was reasonable and thorough, based on a broad theory of how to interpret the state constitution.

The Pennsylvania Republicans' response? Unsurprisingly, they appealed to the US Supreme Court. Equally unsurprisingly, the court refused to intervene in what was purely a state matter involving the state constitution.

Then the Republicans went for an even bolder move: impeach the elected Democratic justices on the state supreme court who ruled against them. That's a blatantly partisan tactic to remove judges simply because the politicians disagree with a legal interpretation. The justices in the majority were not acting outside their authority, opining on policy or, as some might say, legislating from the bench. They were simply doing what judges always do: interpret and analyze constitutional text. That's no sound reason to impeach them. Even the state's chief justice, a Republican who was in dissent in that case, blasted the impeachment effort as "an attack upon an independent judiciary, which is an essential component of our constitutional plan of government." The move appears to have fizzled, yet even suggesting impeachment because of an opinion that simply does not go the politicians' way sends a dangerous message to the public about the courts' role in ensuring fair and equal elections for everyone.

Republicans in Wisconsin also refused to comply with a judicial order that went against them, at least until they realized they were out of options. The case involved Gov. Scott Walker's refusal to call a special election to fill vacancies in the state Legislature. Two members of the state assembly resigned their positions last December to join Walker's administration, creating vacancies that require special elections to fill. But Walker refused to call those special elections, likely fearful of being caught in the Democratic wave that has carried recent special elections in other states. He tried to justify his actions by citing a state statute that says the governor must call a special election if a vacancy occurs "before the second Tuesday in May in the year in which a regular election is held." His argument was that the vacancy occurred in December 2017, which is not technically "the year in which a regular election is held."

State Judge Josann Reynolds, who Walker himself had appointed to fill a vacancy on the bench, ruled that this interpretation was "absurd." The statute allows a vacancy to remain open until the general election only if the vacancy happens to occur close to an election, not a year in advance.

Yet Wisconsin Republicans did not initially comply with Reynolds' decision. While appealing (and losing), they also drew up legislation that would prohibit the state from holding a special election in the summer of an election year, effectively undoing the judge's decision. Former Attorney General Eric Holder, whose National Democratic Redistricting Committee helped bring the suit, said, "Even for Republicans in Wisconsin, this would be a stunning action to keep citizens from exercising their right to vote. They appear to be afraid of the voters." Walker eventually did call the special elections for June, and the Republican legislators dropped their plan to change the law, but only after two more courts rejected Walker's power grab.

What's most stunning, however, is how Wisconsin Republicans actively sought to undermine the authority of the judge who issued the initial opinion. Assembly Speaker Robin Vos criticized her as an "activist" and claimed she had injected her "own personal opinion into how we conduct elections."

"It's something about the water" in "liberal" Madison, Wisconsin, Vos said. And instead of complying with Reynolds' ruling as legitimate, Republicans crafted a plan to change the law to deny the citizens of these districts from having an election and any representation in the state Legislature. They only backed down after they lost their appeals and realized their new proposed law would invite further litigation, claiming they were "boxed in" by the courts' rulings.

These actions by state legislators are unacceptable in a well-functioning democracy. The rule of law requires that all of us recognize the power of the judiciary to interpret constitutional text and legal rules and to accept those decisions, even if we disagree. Our elected leaders in particular have a duty to model proper behavior, upholding the sanctity of an equal branch of government. The answer to a judicial decision that finds one's actions unlawful is to comply with the law, not to unduly attack the individuals who made the decision.

This approach is not without precedent, but it is still unsavory. In 2010, three Iowa state supreme court justices lost their seats in a retention election based on their ruling that legalized same-sex marriage. In 1986, California voters declined to retain three justices on the state supreme court largely because of their rulings to overturn death penalty sentences. The more recent actions this year are even worse because they have occurred not in the course of regularly scheduled judicial elections, but instead in direct response to legal decisions that the politicians simply don't like.

In the 1803 case Marbury v. Madison, the US Supreme Court famously said, "It is emphatically the province and duty of the Judicial Department to say what the law is." The authority of a court to "say what the law is" derives from its legitimacy, or the notion that citizens will abide by its rulings. To sustain our democracy, we must not allow that legitimacy to remain under attack.

Mississippi Coronavirus Cases

Data is updated nightly.

Confirmed Cases: 16769

Reported Deaths: 803
CountyConfirmedDeaths
Hinds110426
Madison77829
Lauderdale76569
Neshoba73945
Jones70933
Scott66312
Forrest60039
DeSoto59310
Rankin4639
Leake45512
Holmes44431
Copiah3344
Jackson31415
Attala31218
Yazoo2985
Newton2924
Oktibbeha28314
Leflore28238
Lincoln28131
Wayne2803
Monroe26925
Harrison2687
Lamar2525
Lowndes2529
Pearl River21231
Pike20411
Adams20416
Warren19910
Washington1998
Lee1978
Noxubee1956
Covington1832
Bolivar16911
Jasper1684
Clarke15619
Smith15611
Lafayette1564
Kemper15611
Chickasaw14314
Coahoma1324
Clay1254
Winston1241
Carroll11911
Marion1169
Claiborne1165
Yalobusha1116
Grenada1104
Lawrence1071
Simpson1050
Sunflower963
Tate931
Hancock9012
Marshall893
Union897
Itawamba897
Webster885
Panola873
Wilkinson859
Montgomery841
Jefferson Davis823
Tippah7611
Calhoun684
Walthall670
Amite651
Humphreys647
Tunica583
Prentiss533
Choctaw522
Perry513
Pontotoc493
Jefferson421
Tishomingo360
Stone320
Quitman320
Tallahatchie311
Greene301
George302
Franklin292
Alcorn191
Benton140
Sharkey70
Unassigned00

Alabama Coronavirus Cases

Confirmed Cases: 19387

Reported Deaths: 676
CountyConfirmedDeaths
Mobile2341123
Jefferson1927105
Montgomery190544
Tuscaloosa85316
Marshall7149
Franklin5939
Lee56334
Shelby53619
Tallapoosa43566
Butler43121
Walker3973
Elmore38110
Chambers36326
Madison3594
Unassigned3144
Morgan3141
Baldwin2969
Dallas2963
Lowndes26912
Etowah26512
DeKalb2603
Autauga2485
Coffee2401
Sumter2369
Houston2275
Pike2231
Bullock2197
Colbert1972
Hale19210
Russell1870
Barbour1831
Marengo1796
Lauderdale1752
Calhoun1693
Cullman1631
Wilcox1587
Choctaw15310
Clarke1492
St. Clair1372
Randolph1288
Dale1250
Marion12511
Talladega1215
Pickens1215
Limestone1100
Chilton1081
Greene955
Macon944
Winston920
Jackson863
Henry842
Covington831
Crenshaw803
Escambia793
Bibb761
Washington746
Blount641
Lawrence510
Monroe492
Geneva450
Perry430
Conecuh421
Coosa401
Cherokee383
Clay282
Lamar280
Fayette160
Cleburne151
Tupelo
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