There is
enough Supreme Court aversion to go around, even to the
state version of the highest court in the land.
Sometime before Christmas, among the multitudes of greeting
cards I received was the one you see here on the left. You probably
have to click on each image to see them clearly.
My favorite part is at the end of the inside part of the
card. “This card is a
parody and not actually from Chief Justice Roberts.” It’s a
good thing that disclaimer is there, because Roberts could sue and
eventually appeal the case all the way to himself.
The message of this card is that the U.S. Supreme Court is
secretive and accountable to no one. State lawmakers have a
different complaint about the state nine, and they
say partisanship is the answer.
The bill is unlikely to get a hearing, according to other news
reports and one local legislator. It sends a message,
nonetheless. House Bill 1051, sponsored by state
Rep. Richard DeBolt, R-Chehalis, and co-sponsored by 15 Republicans
and three Democrats, begins with this subtle epistle:
“The legislature finds that because the supreme
court has decided to act like the legislature and has
thus violated the separation of powers, the supreme court
should be considered partisan like the
legislature.“
Why the dig? Because the state Supreme Court has not only ruled
that the state is not meeting its paramount constitutional duty in
adequately funding education, the court has a bucket of solutions
it can choose from should the Legislature’s response to that
ruling be deemed inadequate.
Two local legislators, Democrat Sherry Appleton of Poulsbo and
Republican Jesse Young of Gig Harbor, are among the
co-sponsors.
Young did not respond to requests for comment. Appleton
responded to an email saying she believes the bill will not
even get a hearing. Asked why why she is backing it, she
replied that she isn’t. “It was just a message to make people aware
there are three branches of government, and we don’t make
constitutional rulings, and they should not tell us how to write
budgets.”
Asked what the court should be allowed to do in its role as
a check against the state government’s two other branches, Appleton
said the court’s job is to determine the constitutionality of
laws. “We have a job to do, and they are part of the solution,
but not doing the legislature’s business by telling us how to write
a budget. We know full well what we have to do, and we
will do it, in spite of the Supreme Court, not because of it.”
Among the solutions the court has discussed should the
Legislature fail to meet the court’s definition of “adequate”
education funding is one that would void the budget
completely, undoing all tax loopholes. It seems unlikely the court
would resort to that option first, but should it
employ anything there are legislators who believe it would be
out of its bounds.
Hugh Spitzer, a constitutional law professor at the
University of Washington, said any constitutional revenge by the
Legislature would require near unanimity of the lawmaking body,
which doesn’t seem likely. More within reach is
legislators stalling state law fixes requested by the courts.
Legislators have threatened the court financially in the past,
but that seems unlikely, too. Punishing the courts
financially “punishes the public if the public doesn’t have
access to the courts,” Spitzer said. Furthermore, in a pinch the
Supreme court could order funding from the state. It never has, but
it could.
Washington would not be the only state with partisan judges and
it wouldn’t be the first time the state had such a setup.
According to Judgepedia, seven states elect Supreme Court
justices in partisan elections. In two states the
justices are nominated in party primaries or conventions and other
states involve the parties in lower court assignments.
Spitzer said Washington judges were elected in partisan
elections until 1907. Partisanship came back came back a few years
later when Republicans were upset that a Democrat had been elected
in a non-partisan election. GOP legislators managed to put two more
seats on the bench, got two of their own elected and then made the
judge races non-partisan again.
Maybe this Legislature ought to consider doing that. If they did
it during presidential election years, when all our televisions are
affixed to Fox News and MSNBC, we might not notice. The
newspapers would cover it, but who reads those anymore?
