“I don’t have to obey no stinking order”

Garrett Epps on widening contempt for the rule of law in the US such as for instance

the litigation tactic adopted by Michael Turzai and Joseph Scarnati, two Republicans who are respectively the speaker of the Pennsylvania State House of Representatives and the President of the Pennsylvania State Senate, in an emergency stay application filed with Justice Samuel Alito. The application asked Alito to block a decision of Pennsylvania’s State Supreme Court. That decision—rendered as an order on January 22 and explained in a lengthy opinion on Thursday—invalidated the system of U.S. House districts approved by the Republican legislature for election of members of the U.S. House next fall.

The state court held that the partisan nature of the district plan violated the Pennsylvania Constitution’s requirement of “free and equal” elections. The court ordered the legislature to draw up a new congressional district plan in time for the congressional elections this November.

Federal courts have no authority to overrule a state’s Supreme Court about what that state’s constitution means, Epps says, but Turzai and Scarnati asked anyway, because they really really wanted to. Alito said nah without even passing the request on to the full court.

Astonishingly, as Alito was pondering the request to throw the U.S. Supreme Court under the bus, Senate President Scarnati was also informing the Pennsylvania Supreme Court that he had no intention of obeying its stupid order anyway. “In light of the unconstitutionality of the Court’s Orders and the Court’s plain intent to usurp the General Assembly’s constitutionally delegated role of drafting Pennsylvania’s congressional districting plan,” Scarnati’s lawyer wrote to the Pennsylvania justices, “Senator Scarnati will not be turning over any data identified in the Court’s Orders.”

Appellate lawyers generally consider “I don’t have to obey no stinking order” a high-risk argument strategy. It tends to leave any judge with an ever-so-slightly jaundiced view of the party invoking it.

Maybe the plan is to imprison all the judges? Or kill them? Sounds a bit Pakistan-like, but that’s what happens when contempt for the law spreads.

Pennsylvania Republicans are doing their best to render the Pennsylvania Supreme Court powerless.

In short, Pennsylvania is in the middle of a state constitutional crisis, and one side of the dispute is willing to threaten the independence of the state’s courts for the chance at six extra House seats.

Readers in North Carolina may find the fracas oddly familiar-sounding. After Republicans gained control of the legislature there in 2011, state courts blocked a number of their conservative innovations, including an attempt to abolish teacher tenure and a measure to bar the state’s Democratic governor from appointing a majority on local election boards.

The Republican legislative majority struck back. It has done away with the state’s public financing system for judicial elections (thus making candidates dependent on big donors), and has voted to require every judicial candidate to run under a partisan label (thus making judges explicitly partisan). It also abolished the party primaries for judicial office—meaning that incumbents would face multiple challengers rather than one strong one. When vacancies occurred on the state court of appeals, legislators “unpacked” the court, abolishing the open seats, to prevent the Democratic governor from appointing new judges.

The Republicans then offered redrawn judicial district maps that would have made the bench radically whiter and redder. When these ran into heavy weather, they canceled this year’s judicial elections altogether. They proposed making every judge run for re-election every two years. They are now mulling a plan to abolish judicial elections altogether, so that the legislative majority can name an all-Republican pool of candidates for every judgeship in the state. In other words, one way or another, the state courts are to be annexed to the power of the Republican legislative majority.

Scary enough yet?

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