The Arkansas Bar Association voted recently to recommend that the Arkansas Constitution be amended to provide for appointment of members of the Arkansas Supreme Court rather than by election.
It's a long-shot proposition even if the legislature puts an amendment on the ballot. We like our elections in Arkansas, though the new Republican majority is taking a shine to appointment now that a Republican governor would be in charge. But they've also taken more of a shine to judicial elections than when most of the judges were Democrats. Now judicial candidates often find ways to send signals that they are Republicans, no matter that elections are officially nonpartisan, because of the electoral benefits of the association.
It's been a tumultuous couple of weeks for judicial law-making, however, an illustration of the old maxim about being careful what you wish for.
A four-member majority of the Arkansas Supreme Court, in a case of life or death, said the Arkansas Constitution's requirement of publication of expenditures of tax money didn't mean what it clearly says. The issue was spending on drugs to execute prisoners. The four-member majority said publication was left to the discretion of the General Assembly, including conceivably never. The court was deferring to the Arkansas legislature, which in 2015 approved legislation meant to protect the identity of back-alley sellers of lethal drugs. Pharmaceutical companies are not anxious to advertise the use of their products for killing.
The elected judges also deferred to the legislature in the matter of their own retirement. You may be elected to a judgeship after age 70, but if you are, you must forfeit lucrative judicial retirement benefits. Dozens of states have the same sort of rule and federal courts have found this was a rational, nondiscriminatory idea. At 66, I find it plausible that people are able to be productive at an office job after 70. Some older judges feel that way, too. But they didn't want to cross the legislature.
This comes after the elected court's embarrassing performance a year ago on another matter of discrimination — the same-sex marriage case. In it, a prolonged deferral led by Justice Courtney Goodson spared the state court from upholding the state's constitutional promise of equal rights. The Arkansas court let the U.S. Supreme Court take the heat.
The U.S. Supreme Court, still appointed by the president (when the Senate is willing to allow confirmation votes) is another matter. Thanks to its current lack of a full complement of justices, it couldn't decide an issue of importance to millions of immigrants. This was a disservice to both sides of a pressing issue.
But the court did better this week on abortion, when it struck down a Texas law meant to make abortions de facto illegal. The law said abortion providers — even those merely providing pills that eventually cause miscarriages in the first weeks of pregnancy — must meet the standards of surgical clinics and employ doctors with hospital privileges. No similar rules apply to childbirth, colonoscopies and many other riskier procedures. The Supreme Court said the pretext of health and safety was just that, a pretext for an undue burden on women.
The appointed judges of the U.S. Supreme Court also declined to disturb a Connecticut law that places restriction on the sale of military-style weapons. And it also said domestic violence was just cause for loss of Second Amendment gun possession privileges. All this came near the one-year anniversary of the U.S. Supreme Court ruling striking down state bans on same-sex marriage.
On balance lately, then, appointed justices seem to be more likely to attempt to interpret the Constitution than bow to popular pressure. Even partisan appointees surprise at times — Anthony Kennedy on abortion and same-sex marriage, for example, not to mention Chief Justice John Roberts on preserving Obamacare.
Given the bent of some of those recently elected to the Arkansas Supreme Court, it's hard to see how Gov. Hutchinson's appointees could be much worse.