If the justices of the Arkansas Supreme Court were half as power hungry as the governor, his successor and a few legislative leaders say they are, this state would be a far better place.
Its schools, anyway, would be doing a better job of serving the children.
But the current Supreme Court is only modestly bolder than all its conservative predecessors. All that is missing is the eternal forbearance of the justices who went before them toward the men who run the policy branches of the government. A quarter-century of dalliance by legislators and governors and a half-dozen orders by the Supreme Court will try any judge’s patience.
Five of the seven justices last week extended the Lake View school case until the end of May, which is soon after the 2007 legislature should be adjourning. The justices went out of their way to say that they would not be riding herd on the legislature and the new governor, though we should hope that they would, and that all they really wanted was for the state officials to explain to the court exactly what they had done this year to comply with the Constitution and the court’s previous orders.
But you would have thought that the court had revoked habeas corpus. Gov. Huckabee, who has denounced the court before praising it and denouncing it again, said he was “disgusted” with the court, which he said was “out of control” and “out of compliance” with something. Attorney General Mike Beebe, the governor-elect, was only “disappointed” but he said the court had ignored fundamental doctrine. In truth, it was he and his clients.
A year ago, the Supreme Court said that the legislature and Gov. Huckabee had failed in several ways to do what they solemnly promised in acts that they had passed in 2004, which was to make education the No. 1 priority of the state by funding a suitable and equal education program first. The court identified the failures, which came about when the legislature in 2005 ignored the laws that it had passed the previous year. The court gave the state until last week to fix things. When the state demonstrated that it had done it, the court would then issue its mandate and the 14-year-old case would end.
Huckabee called a special session in the spring, they raised school spending by $87 million this year and took other steps to comply, and they agreed that indeed they had fixed things. But they never reported to the court either what they had done or how those steps had repaired the failings. The attorney general’s office said they talked about filing a report to the court but decided to lay low and see if the school plaintiffs raised objections.
The school plaintiffs waited, too, and then on Nov. 17, two weeks before the deadline, filed a motion saying the legislation fell short of addressing the needs. Beebe replied to the court that the schools had waited too late.
But it was Beebe and his clients who were too late. Beebe’s office insisted that the Supreme Court never said that it should report what the state had done to meet its obligation, arguing in effect that the court should have explained an attorney’s duty to the court and his clients.
A court decides a case based on evidence, not upon what the judges may happen to have seen on television or read in the papers about the case. I learned this in 1972 when the attorney general subpoenaed me as a witness in a federal trial on legislative reapportionment. The attorney general wanted to submit as evidence of the Board of Apportionment’s superb work an article I had written analyzing the reapportionment’s effect on African-American representation in the legislature.
Hardly had I revealed my name when the magnificent Republican judge, J. Smith Henley, stopped the questioning.
“Mr. Thornton,” he inquired of the attorney general, “is it your aim to have a newspaper story by Mr. Dumas entered as probative evidence in this case?”
“Yes, your honor,” he said.
“Then, Mr. Dumas, step down and go back to your work, whatever it is,” the judge said. He explained to the state’s lawyer that he had better have real evidence because an article by a scruffy newspaperman is only evidence that he wrote it, not proof that the Constitution has been obeyed.
The state Supreme Court seems to operate by the same doctrine. Judge Henley, incidentally, rode herd on the Arkansas prisons for many years.
Huckabee’s outrage was directed at two old friends, Justice Betty Dickey of Pine Bluff, who was his counsel when he put her on the court, and Carol Dalby of Texarkana, whom he appointed to the court to hear this specific suit. Both voted last week to continue the case to see if justice had been done.
The egressing and ingressing governors would do well to heed Dalby’s plaintive appeal a year ago when the court gave the state another chance.
“There is upon the horizon the goal of a general, suitable, and efficient system of free public schools for all children of our state,” she wrote. “That goal will one day be attained and upon attainment a mighty shout of rejoicing will be heard by and for the real victors of this struggle, our children. The echoes of all the combined efforts to reach this goal will be heard and felt throughout the valleys, the forests, the mountains, and the most hidden and tucked-away places of our state for generations to come.”
She should not hold her breath.