State Supreme Court Decision Shows Need To Protect the Separation Of Powers

The Arkansas Supreme Court rejected a proposal last week that would have given it even greater power to overrule constitutional amendments passed by the Legislature.

From the AP:

Justices rejected the proposed rule change from Scott Trotter, an attorney opposed to a measure going before voters next year that would limit damages awarded in lawsuits and give the Legislature control over court rules. Trotter’s proposal would have allowed challenges to be filed directly with the state Supreme Court over proposed amendments referred to voters by the Legislature. Under current rules, measures initiated by voters through petitions can be challenged directly to the state Supreme Court while lawsuits over referred measures must first go through a lower court.


Trotter’s proposal also would have required justices to consider whether a legislatively referred proposal is intelligible, honest and impartial, which is the standard used for those initiated by voters. He said the court currently uses a much narrower standard: whether the legislatively referred proposal is a “manifest fraud” on the public.

The fact that the Arkansas Supreme Court even has the authority to consider a rules change that could undermine a constitutional amendment passed by the Legislature just shows how large the judicial branch’s power has grown since Amendment 80 was passed in 2000.

In the past, the Supreme Court has regularly struck down laws passed by the legislature by using its rulemaking authority to change public policy. Admittedly, the judicial branch has an important role in determining whether laws are unconstitutional, but this determination should take place by means of actual cases and controversies that make their way through the court system.

Trotter’s request illuminated something that should trouble any advocate of the separation of powers: the Supreme Court is apparently able to unilaterally strike down measures passed by the legislature — and essentially make new public policy through its rulemaking power — at the request of one attorney.

This growth in the power of the judicial branch would be curtailed back to its traditional, pre-2000 role if SJR 8 becomes law.

For more on this issue, see Dan Greenberg’s post from earlier today.

Trotter didn’t return a call for comment Monday.

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2 thoughts on “State Supreme Court Decision Shows Need To Protect the Separation Of Powers

  • August 9, 2017 at 4:50 pm
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    One would think all SJR8 does is deal with narrow separation of powers matters. Unfortunately, it goes far far beyond that to expand government and limit the rights of individual Arkansas citizens.
    “The fact that the Arkansas Supreme Court even has the authority to consider a rules change that could undermine a constitutional amendment passed by the Legislature just shows how large the judicial branch’s power has grown since Amendment 80 was passed in 2000.”
    That’s a misstatement of the paragraph you quoted immediately above it. How this conclusion was reached from what you quoted is unknown. Perhaps you could share the opinion so we can discuss the actual statement of the court.

    Reply
    • August 20, 2017 at 10:50 am
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      Matt, you have been a regular commenter on this blog (I stopped counting when you went over 50 posts), and it seems that you take every occasion to accuse SJR 8 of expanding government and limiting people’s rights. You are entitled to your opinion about these matters, but it is notable that you are never able to explain these hyperbolic claims.
      I appreciate that you think that Caleb’s article contains a “misstatement.” But (as is your usual M.O.) you haven’t explained, or even identified, the misstatement. You say how Caleb’s conclusion was reached is “unknown.” Well, it seems perfectly clear to me. Are we just going to have to have an understanding that your statements must be taken on faith?

      Reply

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