In one stroke, the ... court violated those precepts of judicial restraint and constitutional interpretation which it most frequently has insisted on in the past; it transformed itself into a superlegislature.
So reasoned the minority of the Arkansas Supreme Court and a few other critics of the court’s decision on June 9 to once more consider whether the legislature and Gov. Huckabee did their constitutional duty by Arkansas children.
But those are not the precise words of the three minority justices or of the lay critics of the court’s extraordinary decision in the Lake View school case. They were written in 1962 by James Jackson Kilpatrick, the eloquent Virginia editor whose book “The Southern Case for School Segregation” was the Southern bible for a while. The object of his scorn was the May 17, 1954, decision of the U.S. Supreme Court outlawing school segregation.
This is not to imply that there is the slightest moral equivalence between Southern defenders of school segregation and those who object to the state Supreme Court’s instant review of the legislature’s and governor’s labors to comply with the court’s order that they transform Arkansas schools into a constitutional system — one that gives every child in the state a good chance for a proper education. Chief Justice Jim Hannah, who wrote the strongest dissent in the Lake View decision and used Kilpatrick’s language, would profoundly object to any linkage to segregationists.
But here is what connects the cases and the critics of the jurisprudence that was involved in each: Both cases were the most dramatic to confront the respective high courts in a century, and the decisions raised the dark and troubling question about defiance and who might have the will or the power to enforce the decisions.
In the Lake View case, of course, there is no instant order that needs enforcing, and given the close split on the court there likely will never be one. The majority appointed two masters, former justices, who will marshal evidence of how well the other two branches carried out the court’s mandate of 2002 to provide a suitable and equal education to all. But by recalling its mandate and assuming jurisdiction, the court raised the possibility of a fresh order that will require far greater spending on education and the specter of defiance by the legislature and perhaps even the governor.
There is talk of that by Republicans in Kansas and Texas, where the courts this spring have ordered huge new spending on education to meet similar constitutional mandates and handed the legislatures and governors deadlines for acting.
That is enough for justices and even cautious admirers of the courts to recoil from sweeping and extraordinary decisions. What does the court do to enforce its order? Despite the exclamations that the Arkansas court is acting as a “superlegislature,” it clearly is not going beyond the historic scope of the judiciary by judging whether legislative and executive actions are constitutional.
If the Supreme Court should ultimately direct the levy of a tax for the schools or another specific remedy someone then might claim that there had indeed been a judicial coup de main and that it had usurped legislative prerogative. But at least a couple of majority justices made it clear that they would never do that. The separation of powers is not in danger.
Still, the question of enforcement clearly troubles some justices. So they wrote that the Supreme Court has no jurisdiction now because the legislature last year created an entirely new public school system in Arkansas and that system must be attacked afresh with a new lawsuit in circuit court. The old system that the court declared unconstitutional is gone.
But Arkansas schools, as most teachers, students and parents will testify, are 90 percent unchanged. Unless you are one of the handful of patrons of consolidated schools, it is the same old school system, perhaps marginally improved.
In the second Brown decision, the U.S. Supreme Court dispatched jurisdiction to federal district courts in the South, and for a while the relief of Southerners was justified. Deep South judges tended not to carry out the order to integrate the schools until appellate courts like the 5th and 8th circuits stiffened their spines. But the president of the United States ultimately ended the doubt and enforced the orders, Dwight Eisenhower at Little Rock in 1957 and Richard M. Nixon in 1968 when his Justice Department moved every Southern community to finally end separate schools.
The constitutional crisis everyone fears in Arkansas occurred 18 months ago when the legislature and governor dragged their feet for months. When the Supreme Court re-entered the case the other branches did their duty and enacted reforms, including a modest tax program. If called upon, they will do it again because everyone understands that is how the system works.
The issue is not whether the legislature this year did some good by the schools or quite a bit. It is whether it fully complied with the letter of the Constitution, which the Supreme Court has properly defined.
Those are not extraordinary or unprecedented things for either the court or the legislature and governor to do. They are the very bedrock of our republic.