Columns » Ernest Dumas

Independent judiciary: Rapert doesn't get it

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Sen. Jason Rapert image
  • Brian Chilson
  • Sen. Jason Rapert

What do Alexander Hamilton, state Sen. Jason Rapert of Bigelow and the opinion editors at the Arkansas Democrat-Gazette have in common? Not much.

For two weeks, the statewide newspaper had given Pulaski Circuit Judge Chris Piazza as thorough a verbal whipping as you can lay on a judge for doing what the law requires him to do, decide lawsuits, after he held that state laws prohibiting legal recognition of same-sex partnerships violated their constitutional protections.

Then Sunday the paper gave nearly two full pages of its opinion section to Rapert for an amazing screed against Piazza, the homosexual "lobby" and assorted critics of the senator. The giant piece — it ran to nearly 3,000 words and was decorated with patriotic art and headline ("We the People") — began with Abraham Lincoln, closed with George Washington and along the way liberally invoked Thomas Jefferson, "the founding fathers" and Ronald Reagan. None of them ever had a word to say that bore on whether same-sex couples deserved to have legal protections or whether judges could or ought to rule that they did.

Notably missing was the one sainted historical figure who was relevant to the whole controversy. That is Hamilton, the greatest constitutionalist. He directed the writing of the Federalist Papers on the proposed constitution and wrote all the essays explaining the need for a coequal judicial branch with the power and will to review decisions of the other branches and to protect the rights of minorities.

That is what the outsized controversy over Piazza's decision is all about — whether courts have the power to annul laws passed by legislatures or by a majority of voters if they violate the Constitution. Rapert says courts don't have that power and claims a good part of the legislature is in his corner. Hamilton established the power of judicial review in the most famous Federalist tract, the Supreme Court affirmed it in 1803 and thousands of courts have exercised the power for two centuries.

The newspaper's position is not so clear on anything about Piazza's decision except that he is incompetent and out of control. Uniformly, judges all across America for the past nine months have rendered the same decision, but it is safe to say none has gotten such a savaging as Piazza, a judge who has been elected to the bench for 23 years without a whiff of scandal and who enjoys a record of approval by superior courts that is about as unsullied as a trial judge can have.

So what did Hamilton, who is honored above all the founders for his bravery, political principle and intellectual acuity, have to say about this mess? This, in Federalist 78: "The independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society. These sometimes extend no farther than to the injury of the private rights of particular classes of citizens, by unjust and partial laws."

Does that describe the situation with same-sex partnerships just about perfectly?

Piazza is not really the object of the screeds. The Arkansas Supreme Court is. The seven justices will decide the issue, perhaps as early as this winter but whenever it can no longer prolong the ordeal. The justices are all elected or else serving interim appointments. The founders gave federal judges lifetime appointments, contingent on good behavior, to assure them of independence from the political branches and from the electorate. Some of the states, like Arkansas, disagreed with the founders on an independent judiciary and elect their judges.

Will the Arkansas supremes get the message from the editorials and columns from the only statewide medium and from legislative screeds? You bet. Except those approaching 70, they are looking at re-election or, in the case of Justice Courtney Goodson, running for chief justice. Another new justice in January, Rhonda Wood, has bigger political ambitions. Can they afford to throw their careers on the rocks by legalizing same-sex marriages or civil unions?

Twice in the last dozen years, the state Supreme Court has upheld the principle in Piazza's decision, that the government cannot deny couples rights that others enjoy simply because they are of the same sex. Not one of the 10 justices who participated in those decisions said the government could punish couples for homosexual conduct or deny them adoption and foster-parenting privileges.

The court has not always been so independent or, shall we say, courageous.

After one of Piazza's predecessors held in 1967 that Arkansas's voter-approved law banning mention of evolution in schools violated the First Amendment, the case went up to a mostly terrified Supreme Court.

The chief justice, fearing popular loathing of his beloved court, begged his colleagues to be united. But it split 4 to 3 for upholding the law. The issue seethed in chambers for more than a year until on the last day of the term two of the dissenters agreed to switch their votes as long as their names were not appended to an opinion defending the law. The ruling came down without a word of explanation. Justice Lyle Brown is reported to have flung his ringing dissent at the others the last day and announced that he would be recorded as voting no even if he was not allowed to say why.

The U.S. Supreme Court reversed them and ridiculed the Arkansas justices for their cowardice. It took some time for the court to recoup its honor.

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