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How to protect independent judiciary; don’t be afraid to speak up
DANIEL A. COTTER
Law Bulletin columnist
Published: February 21, 2018
As promised in my last column, we continue to keep a judicial watch on developments of note in the judiciary.
Judicial independence
Judicial independence is a crucial cornerstone to our form of government. Having power over neither sword nor purse, the judicial branch is considered the weakest branch, but the Federalists recognized the need for judicial independence:
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.”
— Federalist Papers, No. 78.
Pennsylvania calls for impeachment
On Jan. 22, the Pennsylvania Supreme Court issued an order indicating that the 2011 map violated the mandate of “free and equal” elections and promised an opinion. On Feb. 7, the majority issued a 139-page opinion with maps, holding:
“The people of this Commonwealth should never lose sight of the fact that, in its protection of essential rights, our founding document is the ancestor, not the offspring, of the federal Constitution. We conclude that, in this matter, it provides a constitutional standard, and remedy, even if the federal charter does not. Specifically, we hold that the 2011 Plan violates Article I, Section 5 — the Free and Equal Elections Clause — of the Pennsylvania Constitution.
— League of Women Voters of Pennsylvania, et al, v. The Commonwealth of Pennsylvania, et al., No. 159 MM 2017.
The U.S. Supreme Court refused to hear a request to stay the ruling from the Pennsylvania Supreme Court. In response to the Pennsylvania Supreme Court’s decision, state Rep. Cris Dush issued a House Co-Sponsorship Memoranda, available at legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?chamber=H&SPick= 20170&cosponId=25163, demanding the impeachment of the five justices in the majority. The memoranda states:
“On January 22, 2018, the Supreme Court of the Commonwealth of Pennsylvania issued a per curiam [o]rder in League of Women Voters of Pennsylvania, et. al. v. The Commonwealth of Pennsylvania, et. al., No. 159 MM 2017, holding that the Congressional Redistricting Act of 2011 “clearly, plainly and palpably violates the Constitution of the Commonwealth of Pennsylvania” and, on this sole basis, struck it down as unconstitutional. The [c]ourt further enjoined the future use of the [a]ct in elections for Pennsylvania seats in the United States House of Representative commencing with the upcoming May 15, 2018, primary election.
“The [c]ourt in its [o]rder mandates that if the Pennsylvania General Assembly chooses ‘to submit a congressional districting plan that satisfies the requirements of the Pennsylvania Constitution, it shall submit such plan for consideration by the [g]overnor on or before February 9, 2018.’ The court further held that “[i]f the [g]overnor accepts the General Assembly’s congressional districting plan, it shall be submitted to this [c]ourt on or before February 15, 2018.
“This order overrides the express legislative and executive authority, found in Article IV, Section 15 of the Pennsylvania Constitution, concerning the governor’s veto authority and the General Assembly’s subsequent authority to override such veto. Article IV, Section 15 clearly lays out the path a bill must take to become law.
“The five justices who signed this order that blatantly and clearly contradicts the plain language of the Pennsylvania Constitution, engaged in misbehavior in office.
“Wherefore, each is guilty of an impeachable offense warranting removal from office and disqualification to hold any office or trust or profit under this [c]ommonwealth. I would ask you to please join me in co-sponsoring this legislation.”
Douglas Keith, counsel at the Democracy Program at the Brennan Center for Justice, said Dush was calling for impeachment in an instance where it clearly wasn’t warranted, noting:
“This is not what the impeachment power is for — the impeachment power exists to remove officials who have engaged in serious criminal or ethical wrongdoing. For more than two centuries it’s been understood in America that, for courts to have the independence necessary to play their proper role, judges shouldn’t be impeached for rulings we disagree with or for other political motivations.”
Pennsylvania appears to be the latest in several states to attack the courts by limiting their powers or narrowing their independence. In a new report by the Brennan Center for Justice, available at brennancenter.org/analysis/legislative-assaults-state-courts-2018, the [c]enter describes the recent attack on the judiciary in various states. It finds:
“Yet, so far this year, legislators in at least 14 states are considering at least 42 bills that would diminish the role or independence of the judicial branch, or simply make it harder for judges to do their job — weakening the checks and balances that underlie our democratic system. The Brennan Center reviewed legislation identified by CQ StateTrack, provided by Piper Fund, the National Center for State Court’s Gavel to Gavel website, and a review of media reports.
“The bills threaten this balance of power in a variety of ways. Many seek to give the legislature or governor more power over judicial selection, often for partisan advantage; others give the legislature the power to override court decisions and decide the constitutionality of laws they themselves wrote; still others exert political, financial or other pressures on courts to change the outcome of future cases.
“Last year the Brennan Center documented several trends with respect to legislative assaults on the courts, including 45 bills introduced in 2017. This year, many of those trends have continued while new ones have emerged.
“In 2018, as of January 31, legislatures in at least 14 states are considering legislation that would diminish the role or independence of the courts:
“• Twenty-three bills in eight states would inject greater politics into how judges are selected
“• Four bills in four states would increase the likelihood of judges facing discipline or retribution for unpopular decisions or would politicize court rules or processes
“• Six bills in three states would cut judicial resources or establish more political control over courts in exchange for resources
“• Four bills in three states would manipulate judicial terms, either immediately removing sitting judges or subjecting judges to more frequent political pressures
“• Four bills in four states would restrict courts’ power to find state legislative acts unconstitutional
“These trends are not good for the separation of powers and the independence of the judiciary. We as a profession must consider how we view these measures.
Roberts Rules of Foreign Intelligence Surveillance Act orders?
Fox News and other outlets reported that House Intelligence Committee Chairman Devin Nunes, R-Calif., and the committee have considered inviting Chief Justice John G. Roberts Jr. to testify before Congress with respect to how Foreign Intelligence Surveillance Act courts work. While it is doubtful that Roberts would appear before Congress to discuss how FISA courts work, it is the latest in seemingly endless moves by Nunes to attack the FBI and Justice Department.
Conclusion
The activity surrounding the judiciary in recent times, as discussed extensively in the Brennan Center report, is troubling. Judges cannot speak out on these issues of independence and encroachment on this third branch of government, but we in the legal profession must speak out and be the champions of an independent judiciary.
Remaining silent is not an option if we wish for our form of government to survive. Speak out, when you see something, say something. Raise civic awareness of the vital role that judicial independence plays in our democratic society.
Daniel A. Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. The article contains his opinions and is not to be attributed to anyone else. He can be reached at dcotter@llflegal.com.