The Emergence of the Imperial Judiciary in Pa.

By Chris Comisac, Bureau Chief, Capitolwire.

Note: This article first appeared at Capitolwire on 3/26/18 and is reprinted with permission. 

Apparently democracy is under attack in Pennsylvania, with figurative warning shots having been fired over the bow of a so-called “independent judiciary.”

“Independence,” like beauty and “fairness,” is in the eye of the beholder, and with its recent antics, our current state Supreme Court has yet to signal its interest in actually being “independent” or “judicial.”

The Court, particularly its Democratic majority, appears less interested in its judicial duties and more inclined to be a super-legislative/super-executive branch, not subject to the rules applied to Pennsylvania’s General Assembly or governor as per the Pennsylvania Constitution.

The five Democratic members of the court ignored the state and federal constitutions, developing their own metric to determine the constitutionality of a legislatively-drawn congressional district map, applying rules to that map which are not at all mentioned in either the Pennsylvania or U.S. Constitution with regard to congressional maps, nor were they clearly spelled out in the Court’s own order and opinion.

Making matters worse, the metric employed by the Court implements a political philosophy (a territory into which no court should ever stray) regarding congressional representation – based on proportionality (just like the governor’s rejection of a new GOP map) – that was explicitly rejected by the Founding Fathers when they developed the process for electing our members of Congress. That philosophy has likewise been rejected by the U.S. Supreme Court in the past.

Having done that, our Court compounded their constitutional transgressions by ignoring the Commonwealth’s established process for adopting legislation.

A congressional district map is, in the end, legislation that must win the approval of both the General Assembly and the governor. Should the governor reject the legislation within the time allotted his office by the state Constitution, the Legislature has the opportunity to override the rejection.

But not according to the Court’s Democratic majority – well, four of the five Democrats.

Four justices gave the Legislature an arbitrary deadline – of about two-and-a-half weeks – to develop a new map, and then didn’t supply lawmakers with the Court’s full opinion regarding the congressional map until about two days before that deadline. As part of that concocted process, the governor was given less than the 10 days prescribed by the state Constitution for consideration of any legislation presented to him. Additionally, the General Assembly was denied its right to address a gubernatorial rejection of map legislation.

And failing to adhere to the Court’s clearly unconstitutional process to approve a new map, the Legislature and governor would be stripped of their constitutionally-granted authority to develop a map, with the Court doing it themselves – something they ultimately did using a paid, out-of-state consultant to draw the map.

Nothing this kangaroo court did to undo the state’s 2011 congressional map – whether or not the map deserved to be undone – meets the test of constitutionality; instead, the majority, and their myopic defenders, simply claim the Court is the final arbiter of constitutionality, so whatever the Court says is constitutional is, through that circular logic, constitutional.

You know it’s bad when the Republican Chief Justice of that Court publicly defends the Court’s right to make decisions that ignore constitutional processes and requirements – and he argued, in dissenting opinions, the majority overreached with its order and opinion.

Thomas Jefferson warned against this very thing, with regard to an unelected federal judiciary, stating, “It is a very dangerous doctrine to consider the judges as the ultimate arbiters of all constitutional questions. It is one which would place us under the despotism of an oligarchy.”

Unlike the federal judiciary, our state Supreme Court justices are elected. However, once elected, they quickly become much like the federal judiciary, i.e. nearly unaccountable to the electorate, standing only for retention elections, not re-election against other judicial candidates, every 10 years … and a lot of damage can be wrought in the span of a decade.

This congressional map situation could alter the political landscape of Pennsylvania and the nation within the next year (which it’s hard to argue wasn’t the intended result), and who knows how in the years to follow, now that the Court can make up the rules regarding the constitutionality of any legislatively-drawn map.

If that were the only evidence against this court, it would be enough to warrant exploration of impeachment, but there’s more.

The Court’s Democratic majority has also rejected decades of court precedent (its own, as well as that of lower courts) regarding the development of state budgets, i.e. that those budgets are the province of the legislative and executive branches.

A prior version of the state Supreme Court rejected the argument the Court should be the arbiter of what is an adequate amount of state funding for public education … but not this version of the Court.

Nope, this one told Pennsylvania’s Commonwealth Court it couldn’t rely on the aforementioned past court precedent to dismiss yet another lawsuit claiming “unfair” funding for schools. Never mind the “new” lawsuit offers nothing new to the argument, just more claims of “unfairness.” What’s “fair” is not defined anywhere in statute or within the state Constitution – other than the General Assembly is imbued by the state Constitution with the authority to appropriate funds and that the Legislature “shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.”

To question the empaneling of these justices is not an attack on an independent judiciary … it’s an attempt to return the Court to a truly independent (in that it doesn’t pursue any form of political goals) and co-equal branch of Pennsylvania’s government (in that it doesn’t arbitrarily usurp powers constitutionally granted to other government entities).

The justices, just like the legislators pursuing impeachment, took an oath to support and defend both our state and federal constitutions. However, the judges have willfully ignored those oaths in favor of advancing political philosophies, not jurisprudence.

The judiciary in our form of government was never intended to be a law-making body – instead exercising judicial restraint and avoiding judicial activism – and those who consider talk of impeachment being counter to democracy are likewise being willfully ignorant of the facts and how this Court put Pennsylvania into the constitutional mess it now finds itself.

This is not about a simple disagreement of opinion as the Court’s defenders suggest; The Court has ignored the clear, plain language of the state Constitution, as well as established constitutional processes and precedents, instead favoring an “end justifies the means” mentality to deliver their idea of “fairness.”

Unfortunately, that “fairness” – particularly in the case of the new congressional map – is illusory. The Court chose to ignore its own affirmed constitutional congressional map metrics once used to discard the 2011 map, as maps produced by other parties (from Democrats and Republicans) involved in the case more closely matched the criteria stated by the Court in its order than the Court’s eventual map.

That’s the very definition of “tyranny.”

Impeachment is a valid exercise in this matter, provided for by the state Constitution. No one suggests a threat to democracy when the governor vetoes legislation, or when the General Assembly attempts to override that veto, as they are constitutional actions afforded those branches of our government; impeachment, while a serious activity, is no less a constitutional one that can be employed when enough legislators deem it necessary. These same lawmakers would be well served by developing constitutional amendments to undo the mess made by the state Supreme Court, clarifying what constitutes a “constitutional” map drawn by the General Assembly; while they’re at it, the same might be done with regard to education funding … our constitutional amendment process – while time-consuming, as it should be – truly lets the people decide such matters.

Critics decrying the chaos the impeachment resolutions could create or denigrating those exploring impeachment appear to be blind, deaf and dumb to the chaos already created and the potential dangers to our democracy the Court’s actions could trigger.

Playing “see no evil, hear no evil, speak no evil” with regard to the Court might seem to be appropriate to keep the peace and avoid potential political fallout, but it only sets us on the road to accomplishing one thing: enabling the emergence of a de facto one-branch government in which a politically-biased (either conservative or liberal) and unaccountable judiciary can dictate all policy matters in this commonwealth.