These are tough times for the courts.
Many conservatives are frustrated with the judiciary, because sometimes it actually rules against them.
Of course, it was the Terri Schiavo case that set off the latest round of judge-bashing, even though the system worked exactly as it should, in that the courts consistently and soberly ruled on the basis of fact and law, setting aside the understandable emotional factors of the case. The main decision-maker was a Reagan-appointed judge, but that didn’t insulate him from death threats and banishment from his Baptist church.
Conservative activists pressured the U.S. Congress to pass a bill to force the re-attachment of Schiavo’s feeding tube. President Bush flew back to Washington from his Texas ranch in the middle of the night to sign the bill. His brother, Florida Gov. Jeb Bush, considered sending state troopers to kidnap Schiavo in violation of the court order.
All of this helps illustrate why the judicial branch is sometimes the only forum for impartial governance. Precisely because judges are not directly accountable to the electorate — and because they (in theory) do not need to cater to special interests to remain in office — they are not susceptible to easy political manipulation.
That makes them different from, say, the Arkansas legislature.
On Tuesday, 46 school districts in Arkansas joined the Rogers School District in petitioning the Arkansas Supreme Court to reopen the Lake View school funding case, arguing that the state legislature did not abide by the original decision. Their main contention is that legislators ignored the mandate to adequately and equitably finance the state’s education system by failing to increase the base per-pupil expenditure formula.
The legislature defends its actions, pointing to some steps it took to increase the teacher insurance subsidy and allocate some money for school facility improvements. Gov. Mike Huckabee and Attorney General Mike Beebe voiced their support for the legislative remedy, although you have to wonder if Beebe’s choice of words (the legislature “has acted and continues to act”) indicates at least some degree of hesitation, if not shame.
After all, the elected officials know the truth, just like everyone else. A sincere effort to comply with the Lake View decision requires a restructuring of our education system that is almost impossible to achieve by people answerable to public opinion and special interests. It means further school consolidation, more public funding (that would be diverted from competing parts of the budget), and very likely some additional taxes.
Sometimes there are courageous leaders in the legislative and executive branches who accept the political consequences for doing what is required of them as public servants. However, the legislative session just ended was of the more common variety. A few principled and well-intentioned delegates were overwhelmed by their more numerous self-interested colleagues.
More specifically, decisions about education funding were left until the final days, after other priorities were addressed. The governor, who has more clout than ever before as a result of term limits, said he was focused on health, highways, and higher education. He left the legislature to sort out the details of public school funding, and the legislature responded by spending most of their time handing out corporate tax breaks, grandstanding on social issues, and figuring out how to allocate money for local pork projects.
By any rational measure, the legislature abdicated its responsibility to comply with the spirit and substance of the Lake View ruling. Only in the context of our state’s intractable political dynamics — namely, local resistance to change and the disproportionate influence of special interests — could you begin to argue that our elected representatives did “everything they could.”
Over 50 years ago, another high court handed down a controversial and unpopular decision that our elected officials found politically impossible to comply with. Some ignored it, and others found technical ways to explain how they were going along with it when they actually were not. Finally, a few openly and emphatically defied the court order, prompting a constitutional crisis that necessitated drastic action.
A funding formula is not as dramatic as questions of racial equality, but the two issues are certainly tied together at this time, and Lake View is every bit as important for Arkansas as Brown v. Board. The judicial branch may be easily maligned for sailing against the tides of public opinion, but it may also be the only vehicle for substantive education reform, just as it was the only vehicle for school integration in the 1950s. Then, as now, elected officials were powerless to act against the wishes of their constituencies.
With that in mind, the state would be well served if the Supreme Court agreed to reopen Lake View and get more specific about how to achieve its mandate.