The legislature's assault on the courts | Arkansas Blog

The legislature's assault on the courts

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Ernest Dumas has an important column this week, detailing several of the worst assaults on state courts by the current legislature.

Constitutional rights will be diminshed, or lost entirely, in the name of weakening education, suppressing minority votes and making it hard for injured people to sue for damages caused by negligence or worse.

Send it to your legislator.

By ERNEST DUMAS

Not since the John Birch Society's "Impeach Earl Warren" billboards littered Southern roadsides after the Supreme Court's school-integration decision in 1954 has the American judicial system been under such siege, but who would have thought the trifling Arkansas legislature would lead the charge?

Actually, it's not. Donald Trump is, but that surprises no one. Trump impugned every judge who sometimes dared to rule against him in the scores of civil suits over his business deals over the years. When he assaulted the character of every judge who ruled against him in the Muslim travel fiasco this month, many saw the character attacks on judges as an unprecedented attempt by a president to undermine faith in a vital democratic institution. (Even his Supreme Court nominee was alarmed.) Maybe it was, but more likely it was only Trump lionizing Trump, which is all that he is about.

Executive interference with the judicial branch is old hat, and nearly always futile. Franklin Roosevelt tried it briefly in 1937 with the court-packing "Judicial Procedures Reform Act." Our governor tried it when he defied court orders to desegregate the schools in 1957 and was blocked by President Eisenhower, who sent soldiers to Little Rock to enforce the judicial decrees. Late in life, the governor implied to me that it had been his purpose all along to force the president to show the South that he would do his constitutional duty.
Legislative tampering with judicial independence and the separation of powers is rarer, the most grievous being the US Senate's refusal to let President Obama fill a Supreme Court vacancy the Constitution intended him to fill.

Across the country, newly emboldened Republican state legislatures are moving to reverse judicial interpretations of state and federal constitutions on social issues, apportionment and vote suppression that have thwarted the party's ascendancy.

But the Arkansas General Assembly is No. 1. A raft of constitutional amendments that shift historic judicial prerogatives to the legislative branch are working their way through the legislative plumbing. The good news is that only three of them can get on next year's ballot and become law.

Space doesn't permit a full discussion, but here's a digest of the most serious ones.

Tort reform: An initiative resolution would effectively repeal a central doctrine of the Arkansas Constitution's Declaration of Rights, the rules that protect citizens and minorities of all forms from tyranny by majority government or plunder by powerful interests. Art. 2, Sec. 13 in the 1874 charter is a ringing manifesto about the duty of the courts: "Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase; completely and without denial; promptly and without delay . . ."

The legislature is going to change Sec. 13 to say that it will curtail what a jury can award an injured person and what an injured person can pay a lawyer to handle the years of litigation that it takes a poor woman to battle a corporation in the courts. This will be a more reliable way to hold down your liability than bribing a judge to reduce the jury award.
But the resolution goes further and takes away the courts' power to establish the rules by which they operate, which the Constitution now reserves to the Supreme Court. The legislature would take over that function. The judiciary would become a satellite of the legislature, which already controls its funding.

Vote suppression. The Constitution now prohibits the legislature from adding requirements for people to vote beyond those in the Constitution, of which the Supreme Court reminded the legislature in 2014 when it struck down a law requiring voters to show a government photo identification, which many poor, black and elderly people don't have. The legislature intends to put photo IDs in the Constitution in case, the Republicans say, a lot of unregistered people go to polling places and sign the voter affidavits of people who don't show up. There is an actual record of a woman who tried to cast her recently deceased spouse's ballot.

School inequality. Two resolutions would remove the judicial branch's authority to review what the legislature does on public education to see if it comports with the Constitution. Either would obliterate fifty years of history. The Constitution's single mandate to the legislature is that it must provide an adequate and equal education for every child in Arkansas. Since soon after the Second World War, the Supreme Court has accepted its duty to judge whether the legislature and the governor had obliged the Constitution. It ended with the historic Lake View decisions. The proposed amendments would shift that role to the legislature so there would be no more Lake View suits. It would review what it had done every year and determine whether it was adequate and fair to every child. Who needs courts?

Separation of powers, see, was a horse-and-buggy doctrine, pointless in the brave world of Trump.

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