SADOW: The State Supreme Court Managed To Get Its Own Composition Wrong – Again

A partially ad hoc composition of the Louisiana Supreme Court decided that two wrongs indeed make a right, securing a small defeat for the rule of law in the state.

Comprised of three temporary judges, the Court ruled that Assoc. Justice Bernette Johnson would assume the title of Chief Justice come the retirement of the existing Chief Justice Kitty Kimball at the end of the year. A dispute arose because while she had participated in making decisions on the Court two months prior to another member and four years longer than another, Johnson had been elected to the Court almost six years and two years, respectively, after the others. The Constitution stipulates that the justice with the “oldest point of service” takes this position.

The problem was, Johnson participated in cases while as a member of a circuit court as a trick to placate a suit brought against the state, which has no black majority district to elect a judge to the Court. Instead of waiting until the next scheduled redistricting occurred, or doing it then and there, or even doing anything at all because no constitutional violation ever was established, because of political considerations to keep secure the seat of an existing Democrat, the relevant state officials, Democrats all, proposed the elevation on a temporary basis a circuit judge, which turned out to allow for Johnson eventually to assume that role. After redistricting in 2000, she won the newly-drawn seat.

In fact, the Court was in 1997 to rule this solution unconstitutional, and prior had uncannily anticipated this question might one day arise. Shortly after the 1995 term began, the question arose about succession involving Johnson, and a majority of the Court members then opined in administrative conference they did not think Johnson should have this service count towards that privilege. But three years later, after the unconstitutional ruling of the arrangement but where the Court nevertheless accepted her participation as a fait accompli (because to rule otherwise would have overturned every decision made by the Court with her on it), the Legislature passed a law attempting to convey the privilege to her, and state officials, Democrats all, subsumed that into the consent decree that established the unconstitutional measure in the first place.

So the main question was, having been put into her position through an unconstitutional exercise of state power, did this mean that everything that proceeded from that illegitimate power was legitimate. Even if her decisions had been legitimated by fiat, there was nothing compelling the Court to legitimate her claim. Despite logic, this panel, created by Kimball expressly to answer this question minus the three justices who would be affected by the decision (and pressured by a suit brought by Johnson and allies to stop it), they ruled unanimously that Johnson would succeed.

In essence, they argued that the temporary appointive power of the Court plus the absence of any expressed differential treatment between an appointive and elected member in the debate around the seniority provision in the 1973 Constitutional Convention (although deftly sidestepping the inconvenient point that likely no delegate ever envisioned this scenario and may have had very different intentions had the matter been one in their collective consciousness), given other parts of the document the preponderance of evidence fell this way.

At several points they mentioned the 1997 decision that declared the arrangement unconstitutional (but putting it in the euphemistic terms “violated a numerical limit in the constitution”) but crawfished away from a principled application of it by stating because they had not followed through on its implications then, they wouldn’t now. In other words, the Court then having played the three monkeys of see no evil, hear no evil, and speak no evil, it successors now weren’t about to open their eyes, ears, and speak in a principled manner.

One hopes the reason the Court caved wasn’t political, from the Johnson injunction wending its way through the federal courts. Also distressing is if they feared not deciding this way threatened a reopening of the 1997 challenge that could undo everything; to find one unconstitutional application might mean all applications were. But surely the Court could have applied its argument made in the opinion that it had the sole discretion to decide these matters which occurs on a case-by-case means, thereby severing this application from other such as the legitimacy of all decisions made with Johnson from 1994 to 2000.

Regardless, the decision was more political than principled, and when something of that nature happens, a little of the respect of and commitment to the rule of law gest chipped away. Here, Johnson may have won, but the state as a whole and its judiciary in particular loses.

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