In my last column, I wrote about the Pennsylvania Supreme Court’s ruling invalidating, under the state constitution, Pennsylvania’s congressional districting lines. I explained how, fundamentally, this case raised questions of state law and was thus essentially immune from federal (Supreme) court review, insofar as state constitutions are free to have enforceable rights (in this case, the rights of the minority party in the state legislature) that go beyond rights that are recognized under the federal Constitution and enforceable in federal court.
The reaction by some elected Republican (the party in control of the Pennsylvania legislature) officials in the state was harsh. News reports indicate that state Representative Cris Dush has been seeking support for a proposal to impeach the Democratic state court justices who rendered the ruling. Those calling for impeachment seem to be particularly angered by the part of the Pennsylvania Supreme Court decision that indicated the court itself would draw congressional district lines for the 2018 elections if the elected political branches did not submit a timely plan that complied with the state constitution’s requirements. (The court released the new redistricting map on Monday, causing fervent debate.) Nor is Pennsylvania the only state in which the legislature has been seeking to either remove judges or limit their jurisdiction or resources in response to particular judicial rulings. The New York Times and Salon both recently ran pieces surveying some of the most aggressive proposals by state legislators around the country.
Attempts by elected politicians to limit or overturn judicial rulings with which they disagree is certainly nothing new. At the federal level, there have been countless proposals (the vast majority of which were never enacted) to strip federal judges of the power to hear certain kinds of cases (e.g., cases involving school prayers, gay marriage, or the exclusionary rule for improperly obtained criminal evidence) that some members of Congress feel federal judges may be deciding in “activist” ways. At the state court level, controversial rulings are, in jurisdictions that make use of direct democracy, often the subject of initiative proposals that attempt to amend the state constitution to cure the alleged misinterpretation by the state court jurists. One example from last decade was the California voters’ enactment of Proposition 8 in 2008, which purported to prohibit same-sex marriage in the state after the California Supreme Court had found that such inequality between straight and gay persons violated the state constitution.
To be sure, when the attacks on judicial independence move from seeking to limit jurisdiction or undo particular rulings to attempting to remove jurists themselves, the stakes have been raised. (Indeed, many of us who sometimes defend ambitious state court rulings against the charge of “judicial activism” do so on the ground that lofty and forward-looking interpretations of state constitutions are more defensible when there are relatively uncumbersome processes for fixing judicial “mistakes” by changing the state constitutional document itself.) But removal of state jurists is also not unprecedented; voters in a number of states have used retention elections and the recall device to oust high court judges, seemingly in direct response to controversial rulings. (California and Iowa come to mind over the last several decades.) And so what we are seeing today is a trend that builds on some populist precedents.
Are any of these (increasingly) “hardball” tactics (as many analysts might call them) by legislatures and the electorate to push back against rulings with which they disagree themselves illegal under state law? After all, if the controversial judicial rulings are designed (as many are) to redress unfair treatment of political or demographic minorities at the hands of the majority, isn’t it odd that the same political majority can, either through the elected legislature or by a direct vote by the people, impose its will on them yet again?
It may seem odd, but it is almost always perfectly legal. Yes, state constitutional impeachment thresholds often use terms somewhat similar to the federal “high crimes and misdemeanors” threshold, but there is no flat prohibition (legal prohibition, that is) of considering the merits of particular judicial rulings in deciding that a particular jurist is guilty of wrongdoing. (The Pennsylvania constitution’s standard for impeachability includes, simply, “misbehavior in office.”) In most instances, the legal question of impeachability comes down to whether someone can no longer credibly and responsibly serve in a particular office. And when a legal standard is as capacious as that one, there is much room for aggressive implementation. The most meaningful limitations on the use of impeachment come not from legal barriers on the kind of conduct that can be made the subject of impeachment, but from historical practice and norms, and from supermajority requirements (Pennsylvania’s requirement for conviction in the state senate is two-thirds) built into many constitutions.
Thus, in a very real—but often unobserved—sense, state constitutional theory (and all American constitutional law, for that matter) is built on the view that minority rights in the final analysis turn on the willingness of majorities to recognize those rights. As my brother and Yale Law Professor Akhil Amar put the point many years ago: “In the end, individual [and minority group] rights in our system are . . . the products of ultimately majoritarian processes.”
What are we to take away from all this? First, we need remember that what is legally and constitutionally permissible should not be confused with what is morally right. While constitutions may be the “supreme” law that people put down on paper and enact and enforce, they may not be—and often are not—the supreme embodiment of that which is just. Ultimately, even constitutions operate in a larger context of right and wrong.
Second, state constitutions operate not just in the larger context of morality and justice, but also in the larger context of the US Constitution. To go back to California’s Proposition 8 example above, it is worth remembering that after the California voters tweaked the state constitution to prohibit the same-sex marriage rights that the California Supreme Court had recognized in the state’s fundamental charter, the US Supreme Court ultimately found that such rights exist in the federal Constitution, and effectively invalidated Proposition 8. That is why, as important as the Pennsylvania Supreme Court’s districting ruling was, the US Supreme Court’s attitude about partisan gerrymandering under the federal Constitution (pending at the Court right now) remains hugely important as well.
Third, perhaps we should try to think more critically about state constitutional processes that may be used to overrule state judicial decisions or curtail state judiciaries. Requiring no more than a simple majority for initiative measures that amend state constitutions to overturn recognition of the rights of individuals or minorities (as California currently does) may not make much sense, especially in today’s era. It is often said that one of the great advantages of a federalist system is that states can operate as laboratories of democracy—experimenting in ways that provide useful information to other states and the federal government as well. But for states to function as laboratories of constitutional democracy, their constitutions have to operate as constitutions—and state constitutions that are hostage to legislative support and/or a bare majority vote in their alteration processes simply do not do that. A process that requires more than a bare majority of the electorate to accomplish major change—or at least requires a deliberative process to ensure that the majority is more than fleeting, and has considered all angles of a problem—is necessary for constitutional law to further constitutional purposes. In a related vein, inserting or beefing up supermajority requirements for jurisdiction-stripping bills, retention or recall elections, and impeachment processes might also be sensible.
Fourth, and most importantly, we need all constantly bear in mind that the most important decisions ultimately are made not by judges or even legislators, but by voters, when they elect people to the political branches. Legal frameworks help restrain abuse, but they can never absolutely prevent it. Norms and traditions are also very—in some ways even more—useful, but do not seem to work at a time when our government officials seem less concerned about retaining or respecting them. At the end of the day, even those of us who are constitutional lawyers must appreciate that there is nothing that can remotely substitute for electing wise and thoughtful persons who exercise care and good judgment, and who take the long view of things.
Professor, thank you for this commentary on this important topic. In my view you have pointed out many of the tactics used to gain control over laws, lawmakers, and the judiciary. The use of “collateral attacks” – for example to remove a state supreme court justice so they may be replaced be a “friendlier” one so as to achieve a result in upholding a law does point out just how far some will go to enforce their view on others. I appreciate that you and your brother would look to the majority and its willingness to determine what rights they will allow the minority to enjoy; and that you to me seem to make a call for wise people to occupy the positions that distribute and determine the extent of those rights, and that will result in a fair and just society. However, in my view, what you posit is that ours is a “society of men” not a “society of laws”. My view of the Constitution is that it is designed and written to form an “anti-majoritarian” society. It is to prevent the tyranny of the majority; to protect the rights and freedom of minority groups and individuals – even if the protection extends to only one person. That embodied is the notion that there are people that would force their view down the throats of everyone, and should they gain the positions of power, that there will be a barrier contained in the Constitution to prevent the abuse. It seems to me that what is needed is to see that these constitutional concepts are widely taught and understood; so that as much as possible each citizen understands the necessity of protecting the minority. I believe that some of the supreme court justices have not fully understood and applied this concept ( such as a “states’ rights to overrule a federal rights protection,e.g. the right to abortion)- this is where I think that you see the reliance on the good will of these people as the final arbiters. This seems to open the door to letting the “society of men” creep in and effectively overthrow the “society of laws”. If those applying the power do not understand that it is the written law, and that the Constitution is the supreme” law of the land, and think that their subjective notions are the source of power, then the freedom of the individual is not protected and we will live in a different country.