Who Controls the Supreme Court?

"Shall the following supreme court justices be retained in office?" That is the question that will face the 1999 general assembly, with respect to Justices John Dooley, James Morse, and Denise Johnson. These are the three sitting justices who collaborated in the momentous and hotly controversial Brigham ruling of 1997, which led to the equally momentous and controversial Act 60.

This is a good time to understand just why Vermont has a judicial reconfirmation process, because vigorous efforts are already being made by friends of Act 60 and the Court to prove that the general assembly has no business denying retention to a justice on the basis of his or her judicial record.

Article II, section 5 of the Vermont Constitution (dating to 1786) states, "The Legislative, Executive, and Judiciary departments, shall be separate and distinct, so that neither exercise the powers properly belonging to the others." Both legislative and executive branches remain under popular control. If they infringe on each other, or the judiciary, they can be disciplined by the people through biennial elections. But how can the judiciary be subjected to this cardinal principle of popular sovereignty and republican government?

One method is impeachment. It has only rarely been used anywhere, and then only when a judge was proven to be criminally corrupt. (Congress has successfully impeached and removed a Federal judge on only seven or eight occasions in 200 years.)

Some other popular check was seen to be necessary. For the first 192 years of Vermont's history the instrument of popular control of judges was legislative election. As Prof. Sam Hand of UVM has written, up through 1825 "judges did not enjoy job security. They faced annual elections and frequently involuntary retirement." But by the late 20th century involuntary retirement had nearly vanished. Judges moved automatically up through the chairs, from chief superior judge to associate justice to, eventually, chief justice. In 1974 the voters ratified the "Judicial Amendment" ardently backed by the lawyers and judges. This changed the constitution to allow appointment and confirmation instead of legislative election, but in a bow to the principle of popular sovereignty it added periodic (6 year) reconfirmation by the representatives of the people. This was, interestingly, Thomas Jefferson's precise recommendation for curbing runaway judges: "They [the judges] would be under some awe of the canvass of their conduct which would be open to both houses [of the legislature] regularly every sixth year", he wrote in 1821, when popular anger at Chief Justice Marshall's court was at fever pitch. Justices Dooley, Morse and Johnson have applied for that 6-year reconfirmation in 1999, and legislators will vote on them during next year's session.

No one doubts that a justice can properly be denied reconfirmation because of using his position to advance his own financial interests, or partiality in appeals brought by friends, or drunkenness, or criminal behavior, or senility.

The pressing question today is whether a majority of the 180 members of the general assembly can properly deny justices reconfirmation on the grounds that they participated in a politically motivated, historically unsupportable, and deliberately deceptive constitutional interpretation in defiance of established precedents and procedures. The answer is easy: of course they can. Justices take an oath of allegiance in which they solemnly swear that they will not "directly or indirectly, do any act or thing injurious to the Constitution." If a majority of the elected representatives of the people believe that the Justices, in authoring a far-reaching constitutional opinion, violated that oath, they have the power, and indeed the duty, to deny those justices reconfirmation.

Whether Justices Dooley, Morse, and Johnson, in authoring Brigham, did something injurious to the Constitution is for their critics to demonstrate in the months ahead. If it is demonstrated, the errant justices deserve to be sent packing. Otherwise, the people will be forced to live under a judicial tyranny for which there is no popular correction. That is not what the founders of our democratic government had in mind.

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September 1998