From the WSJ Opinion Archives
FROM THE HEARTLAND
A Nation of Laws, or of Judges?
That's the question for voters in three states--and for the next president.
The next president may appoint as many as four Supreme Court justices, but conventional political wisdom holds that voters don't care much. Even so, Republicans and Democrats alike are making control of the high court a principal subtext of their campaigns this year. And if the loud wrangling over the control of state courts is any guide, the conventional wisdom may be proved wrong.
In Ohio a furious battle rages over control of the state Supreme Court, which recently overturned a 1999 tort-reform law that sought to limit damage awards in civil liability cases. The author of the 4-3 decision, Justice Alice Roble Resnick, is a Democrat who has been on the court since 1989. She declared that in passing the law, the Ohio Legislature had "boldly seized the power of constitutional adjudication."
In the view of many Ohioans, it was the court that was guilty of a power grab. The plaintiffs in the case were the AFL-CIO and the Ohio Academy of Trial Lawyers. The latter bluntly asserted that it had standing to sue because the law might reduce the fees its members could collect. The court agreed to hear the case as a matter of original jurisdiction, meaning there was no trial or hearing in the lower courts. Two of the justices who favored this unusual action had heavily depended on trial-lawyer contributions in their elections.
The Toledo Blade complained about the high-handedness of "the gang of four." The Cleveland Plain Dealer added that the ruling "reinforced the suspicion of those who believe the justices, too, were playing politics." The Ohio Chamber of Commerce weighed in with an ad complaining that Ohio was losing jobs to Michigan because of the supposedly superior legal climate there.
Alabama's trial lawyers are pulling out the stops to defeat Circuit Judge Roy Moore, a candidate for chief justice considered a reliable vote in support of the state's 1999 tort-reform act. (Judge Moore came to national attention a few years ago by posting a copy of the Ten Commandments in his courtroom.) It's also alleged that the trial bar was behind a failed effort to smear Lt. Gov. Steve Windom, who was instrumental in shepherding the tort limits through the legislature, on charges of bribing a prostitute in his 1998 campaign.
And in Michigan the Democratic Party, backed by lavish contributions from the trial lawyers, already is running an expensive TV ad campaign against the three Republican-nominated Supreme Court incumbents--Clifford Taylor, Stephen Markman and Robert Young--who must stand for reconfirmation this year. The ads claim that the trio, along with two other colleagues on the seven-member court, invariably rule in favor of big corporations and exercise the same sort of judicial activism of which conservatives have long accused liberal judges.
But the liberal Detroit Free Press recently published a front-page article that looked at statistics purporting to show bias in the majority's rulings and found they "border on the bogus." Some of the rulings were joined by the court's Democratic justices. Others involved claims against government entities rather than private corporations.
And while it's true that the conservative majority has overturned some prior rulings of the court, it's questionable whether that constitutes "judicial activism." The intent was not to make new law, but to return the law to its roots. Judges must respect the doctrine of stare decisis (letting precedents stand), wrote Michigan Justice Maura Corrigan in one opinion, but they are under no obligation to uphold precedents that ignored the plain meaning of a statute or the constitution.
That isn't going to stop the trial bar from seeking to elect judges more compatible with their interests. "Lawyers make money on uncertainty," observes Justice Markman, because defendants are more willing to settle out of court if the workings of the law are unpredictable. And if the law demands a measure of personal responsibility before imposing liability, the chance of expensive lawsuits diminishes greatly.
The essence of the debate at both the federal and state levels is the proper role of the judiciary. As Robert Bork has pointed out, that raises the even more fundamental issue of self-government. If judges have broad discretion to interpret laws according to the tenor of the times, then the ability of the people to make laws through their elected representatives is undermined.
The result is not more enlightened government, but the very politicization of the courts that we are now seeing--and a diminished respect for the law.
Mr. Bray is a staff columnist at the Detroit News. His OpinionJournal.com column appears Thursdays.
