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A “Court Unpacking Plan” Threatens Judicial Independence

After the Supreme Court of Washington voided a controversial new state tax initiative last week, state senate Republicans introduced a bill to reduce the number of state Supreme Court justices from nine members to five — a move that threatens judicial independence and sends the clear message that if you render decisions which are unpopular, you may lose your job.

Published: March 8, 2013

When the Supreme Court of Washington last week voided a controversial new state initiative that would have required a “super-majority” two-thirds legislative vote to pass any tax increase, the political reaction was predictable. Those who had supported the legislative measure were dismayed by the Court’s 6–3 ruling. Those who had opposed the new voting requirement, including Governor Jay Inslee, were relieved.

But what happened next was not predictable at all. On Wednesday, just six days after the contentious tax ruling, Republicans in the state senate introduced a bill that seeks to reduce the number of state Supreme Court justices from nine members to five. As if the concept of a “court unpacking plan” itself doesn’t intrude upon core principles of judicial independence, the language of the proposed measure makes it clear that the lawmakers who endorse it are using it to try to punish the Court for performing its requisite check upon political power. Here’s some of the text of the measure:

The state Constitution in Article IV, section 2 provides that there shall be five supreme court judges. For over one hundred years, the legislature has seen fit by statute to add four additional justices to that august body. Recent opinions by the Washington state supreme court have demonstrated that this legislative decision may be constitutionally problematic. First, the court has made it clear that the state legislature should be focused on prioritizing its budget according to constitutionally mandated duties, McCleary v. State, 173 Wn. 477, 269 P.3d 227 (2012). Given the nature of this mandate, the legislature finds that it can no longer justify the luxury of four additional supreme court justices.

In addition, the Washington state supreme court has indicated that the legislature may exceed its authority when it adds to the minimum requirements provided in the plain language of the state Constitution, League of Education Voters v. Gregoire, Case No. 87425–5 (2013)… With due deference to the doctrine of separation of powers and the Washington state supreme court as head of a coequal branch of government, the legislature finds that the state supreme court should return to the minimum number of judges provided for and enshrined in the state Constitution.

By its terms, the proposed Washington law would require “all existing judges of the state supreme court” to “meet in public” on June 30, 2013 “to cast lots by drawing straws. Effective July 1, 2013, the positions of the four judges casting losing lots by drawing the shortest straws shall be terminated.” The bill’s sponsor, Sen. Michael Baumgartner, wants to use the savings from those vacated judicial posts to fund K-12 education. He says that there is no longer a valid economic or legal reason for his state to have more than the five justices contemplated by the text of the state’s constitution.

Apart from whatever separations of power concerns it may raise, one of the structural problems with Sen. Baumgartner’s measure is that it fundamentally misreads the nature of the Washington supreme court’s ruling in the education case it cites, McCleary v. State. That decision, says Alicia Bannon, counsel in the Brennan Center’s Democracy Program, was a “mainstream decision that falls well within traditional judicial power to interpret state constitutions and require the political branches to fulfill their constitutional obligations.”

In fact, as Bannon points out, the Supreme Court of Washington’s ruling in the McCleary case is entirely consistent with the rulings of other state supreme courts in cases involving education funding. Here is an excellent piece Bannon wrote last year on the topic, about a case out of Colorado which was heard this week by that state’s supreme court, titled “Constitutional Rights are Not Political Questions.” It is the basic role of the state judiciary, she argues, not the political branches of government, to determine the constitutionality of state education funding.

Nor can Sen. Baumgartner argue, with a straight face, that last week’s tax ruling, which precludes the extraordinary remedy of a super-majority vote, is an outlier as a matter of constitutional law. There is significant legal precedent in many other states for the proposition that courts may not easily tweak the democratic process so as to end the concept of “simple majority” rule. And the proper remedy, of course, would be to seek judicial review of the state court ruling at the United States Supreme Court.

In light of these obvious legal failings, it’s hard to gauge how serious Sen. Baumgartner is about this new measure—whether he simply wants to score political points with his constituents about what he perceives to be “judicial activism” or whether he really wants to gut the state supreme court in this fashion. But what is clear is that his proposed bill is part of a new generation of efforts by state lawmakers to check the authority of the judiciary by either reducing or expanding the number of state supreme court justices.

In 2008, an effort to unpack the Michigan Supreme Court failed because the ballot initiative behind the effort was unconstitutionally vague. In 2011, an effort to reduce the Montana Supreme Court from seven justices to five failed as well. So far this year alone, on the other hand, legislative efforts have been made in both South Carolina and North Carolina to add justices to state supreme courts to alter their ideological balances. Bill Raftery, who administers the Gavel to Gavel site for the National Center for State Courts, has well chronicled these recent developments here.

All of these efforts threaten judicial independence not just because of the motives behind them but because of the message they send to judges, to litigants, and to plain, old ordinary citizens. To the justices in Olympia, Washington the message of the “court unpacking plan” is clear: if you render decisions which are unpopular, or which are at least unpopular along a particular portion of the political spectrum, you may lose your job and, worse, the cherished institution for which you work may lose its freedom to issue rulings without fear or favor, even when those rulings deprive powerful political forces of the victories they seek.

To litigants, partisan legislative efforts to undermine judicial authority and independence signal that the “umpires” (to use Chief Justice John Roberts’ famous analogy) are or should be beholden to the players in the game. There are many valid reasons why the state supreme court of Washington today has nine justices instead of five. And no single ruling, or even a series of rulings that disappoint a political party, or that preclude a particular economic result, could ever justify overruling those valid justifications.

Finally, to the citizens of Washington and any other state where the topic comes up, these fits of pique by lawmakers, these symbolic measures, serve mainly to achieve precisely what the lawmakers say they want to avoid. Every legislative minute devoted to undermining judicial independence and authority is a minute not spent trying to create jobs or to otherwise improve the daily lives of ordinary people. Every measure which seeks to punish judges for unpopular ruling serves to jeopardize the ability of judges in future cases to render fair and equal justice.

No one likes every ruling that a judge makes. No one agrees all the time with a particular court. But the fundamental premise behind judicial independence—that judges should be as free as possible from political pressure—is imperative in fostering public confidence in the judiciary and has been tested for centuries under our separation-of-powers’ principles.  Washington state will survive if it cannot employ a super-majority vote to preclude tax increases. But its future without a rule of law, guided by state justices insulated from threats and intimidation, is far less certain.

Photo of Washington State Supreme Court Justices by OnceAndFutureLaura.