Black Robed Bandits
By Lowman S. Henry
The Pennsylvania Supreme Court has triggered a constitutional crisis with the growing possibility that one or more of the justices may stand before the state senate in an impeachment trial. The specter is unparalleled in the recent history of the commonwealth and reflects the recent politicization of the high court.
At immediate issue is the court’s utter disregard for the Constitution of the United States, the Pennsylvania state constitution, willingness to interfere in the legislative process, and abandonment of centuries of precedent.
Aside from intervention by the Supreme Court of the United States, this crisis can have only one of two outcomes: removal of the offending justices from the bench, or evisceration of the power of the General Assembly and the institution of defacto government by judicial fiat in Pennsylvania.
National Democrats triggered this crisis by targeting Pennsylvania’s congressional district map for judicial challenge. The state’s Supreme Court, bolstered in 2015 by the election of three labor union-backed, highly partisan justices, offered fertile ground for just such a challenge.
The justices deserve an Oscar as they played their role to perfection first striking down a district map which had previously passed scrutiny by the state Supreme Court. It then ordered the legislature to violate not only its own rules of procedure, but also constitutional provisions to produce a new map without any public input or even a vote by its members. It then, with no constitutional authority, hired an activist college professor from California to draw a new map which it arbitrarily ordered adopted.
This unprecedented series of events occurred because national Democrats, who remain apoplectic over the election of President Donald Trump, concluded they could not win control of the U.S. House of Representatives under the current set of district maps in place in the various states. They then set about challenging maps targeting Pennsylvania, Wisconsin, North Carolina and several other states.
The maps under which Pennsylvanians elected our congressional delegation have been in place since 2011. The maps were drawn according to all existing constitutional, judicial and legislative guidelines and rules of procedure. That regular order of business resulted in districts that elected a solidly Republican congressional delegation.
But the purpose of redistricting is not to guarantee outcomes. It is to provide for districts that are virtually equal in population. The 2011 map did just that, but then the current Supreme Court bench made up new standards – found nowhere in any constitution – to strike down that map.
Every congressional district map is gerrymandered to some degree based on the partisan leanings of the person or group of people drawing the lines. Certainly the 2011 map was gerrymandered. But an analysis of the map instituted by the Supreme Court finds it is even more highly gerrymandered than the map the court declared to be unconstitutional.
What we have learned is that Democrats are better than Republicans at putting lipstick on a pig. The new map looks more compact – but compactness does not mean the map wasn’t drawn for partisan advantage. In that regard the court’s map is more highly gerrymandered than the one they struck down.
The court’s overt partisan acts have set up a constitutional showdown with the legislature. This is actually the second time (the first involved environmental rights) the Supreme Court has trampled the state constitution and appropriated unto itself legislative powers. If the justices get away with this, then they will have effectively rendered the legislature powerless.
Voters, unfortunately, will have little say in the matter. State Supreme Court Justices are elected for ten year terms, and then stand for retention rather than re-election. The offending justices in this case are just two years into their terms. Likely eight years from now the current kerfuffle will be totally forgotten by the electorate.
So, unless the General Assembly wishes to turn themselves into governmental eunuchs they have no choice but to impeach the offending justices. State Representative Chris Dush has introduced an impeachment resolution which is getting serious consideration by legislative leadership. U.S. Senator Pat Toomey offered his blessing saying impeachment is a conversation that must be held.
We now stand at a fork in Penn’s Woods. Will we be governed by a constitution and three branches of government that respect and abide by the separation of powers it establishes, or will the black robed bandits of the state Supreme Court steal the power of the legislature – and ultimately the power of We the People – in a brazen plot to change the nation’s congressional majority?
Mr. Henry is chairman and CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal