Most members of our state Supreme Court are ducking their duty, say two members, including the chief justice.
The case involved happens to be about gay marriage, but that's irrelevant now. The much bigger issue we face is this: The court majority knows the whole country is watching this case. Yet it's brazenly manipulating the proceedings anyway, according to two of its own members. If the court majority's scruples are this open to challenge while the whole country's watching, what can we expect in any other case they hear?
Doug Thompson is a political reporter and columnist for the Northwest Arkansas Democrat-Gazette. Email him at [email protected].
There's a state constitutional amendment that defines marriage as only between a man and a woman. It was overturned by a lower court last year. The state Supreme Court heard the appeal in November. The amendment stays in effect until the Supreme Court rules. It hasn't ruled yet. There's no good reason why not.
"I believe that a majority of this court has created out of whole cloth an issue to delay the disposition in Smith v. Wright," wrote Chief Justice Jim Hannah. His letter then cites the U.S. Constitution and the state's, along with the Arkansas Code of Judicial Conduct, as his reasons for refusing to participate in a trumped-up stalling tactic. More details later.
Justice Paul Danielson was even more blunt: "I believe that a majority of this court has manufactured a case where no case or controversy exists .... I cannot be complicit in machinations which have the effect of depriving justice to any party before this court."
We can't dismiss this as just an ego clash among people who wear robes to work. Egos clash in the Supreme Court all the time, but the court has always been a closed, even cloistered, outfit. The only open dissent is in written opinions on the law. The court maintains an image of integrity in which all disputes are lofty disagreements on principle. That image isn't something any justice -- much less the chief justice -- lightly decides to destroy.
Hannah and Danielson didn't just wake up one morning and write protest letters. There must have been some tense private exchanges first among the justices.
If the court majority had found a legal leg to stand on to uphold the amendment, it would have. That's my bet. The amendment was approved by three-quarters of the votes cast in the 2004 general election ballot issue. These judges are elected. They like getting re-elected. At least one of them wants to be the next chief justice and will have to run for that. So politically, there's only one right answer to this question in Arkansas.
Unfortunately for the majority, it appears from their silence and stalling that the clear political answer isn't the right answer under the law. So they have a choice: Make a ruling that clearly flies in the face of almost every other ruling in the country, or stall things until the U.S. Supreme Court rules in a similar, already pending case. That would let them off the hook.
Now suppose I'm all wrong. Suppose they want to rule in favor of gay marriage and are delaying for some other reason -- which I can't imagine. Or suppose they're standing on principle and want to uphold the amendment, but are delaying the inevitable. Whatever. They're clearly willing to keep everybody waiting however long that takes. Unfortunately for the court's majority, justice delayed is still justice denied. Hannah and Danielson get that.
There's another big problem for the stalling majority. The case is too simple and clear cut to provide a plausible reason for delay. So they made up an implausible one.
The "whole cloth" and "manufactured case" referred to in the letters is a "dispute" over whether judges who weren't sworn in until January should get to rule in the case. Nobody suggested they could except the court itself, which -- I am not making this up -- filed a case in its own court to settle a question nobody was asking. Hannah and Danielson refuse to participate, which required them to recuse and publicly state their reasons why.
I repeat: This is no longer a gay marriage issue. This is a court integrity issue. So, who wants to file a complaint with the Judicial Discipline and Disability Commission against a clear majority of the state's court of final appeal? And how eager do you think the commission is to hear that one?
The only people who can fix this are the people who elect the judges. The next non-partisan judicial election is in May 2016. In the meantime, the court's order staying same-sex marriages until Smith v. Wright is decided should be lifted and every sitting member of our Supreme Court, including Hannah and Danielson, should recuse from that case. I admire Hannah and Danielson for what they did, but we need a clean slate, even if the pro-gay marriage folks must cringe at the idea of a court wholly appointed by Gov. Asa Hutchinson.
I'm not an attorney, but I don't think impeachment applies here. The justices are accused of a lack of scruple, not a high crime or misdemeanor.
Doug Thompson is a political reporter and columnist for the Northwest Arkansas Democrat-Gazette. Email him at [email protected].
Commentary on 04/11/2015