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Beware of State Supreme Court Justices

BY James T. Riley
by James T. Riley on 12/24/00.

Last month, voters in several states went to the polls not only to vote for president, but for an office that has, until now, garnered little attention - state supreme court justice. With the specter cast by the Florida Supreme Court over the presidential election, citizens now are coming to realize the importance of this office more than ever before.

While not every state elects their supreme court justices, some states that use the appointment process (such as Florida) subject their justices to what are called retention elections, wherein the voters have a say in whether a justice remains on the court. In other states, justices are appointed for life or for a set term without voter consent.

Regardless of how a state selects its supreme court justices, most citizens would be hard-pressed to name at least one justice that sits on their high court. This is true even in states with an elected supreme court, unless a high-profile campaign for the office is being waged, such as the ones in Alabama, Michigan and Ohio this year.

However, there is one thing that each of these 50 state high courts have in
common: the ability to have an impact on the everyday lives of us all. As a co-equal branch of government, a state supreme court is endowed with distinct but equivalent power to that held by a state's governor and legislature.

But, problems arise when the judicial branch places too much emphasis on the word "supreme" and not enough on the word "court," which would otherwise limit them within the scope of their powers to evaluating existing law. This disregard for checks and balances is on full display when a court employs its notion of "equitable powers" to justify the creation of new law. The Florida Supreme Court did just this when it set arbitrary new deadlines for recounts and certification in the presidential election.

In general, when a court usurps the role of the legislature, it is making decisions based upon limited knowledge of the circumstances surrounding the case. This is precisely why the judiciary is supposed to be limited to only considering what the law says, whereas the legislature has the ability to hold numerous public hearings and call upon outside experts for advice and information.

More importantly, a voter can participate in the legislative process by calling or writing elected officials. More often than not, legislators respond to constituents, either by letter or phone call. By contrast, if a voter called a state supreme court justice to voice an opinion, a return phone call would be as likely as Ralph Nader being declared the winner in Florida.

The legislative and executive branches of government are best suited to make the difficult choices on issues such as taxes, education, how to fix our civil justice system and, yes, how to run elections. This is what we elect them to do. The sole task of the judicial branch is to interpret laws, ensuring they conform to the U.S. and state constitutions. This is an important but limited role of the courts - a responsibility the Florida Supreme Court has disregarded.


Senior analyst for civil justice reform and insurance

Citizens for a Sound Economy