At the root of the voter resentment sweeping the state this year is a belief that Vermont's democratic political process was hijacked by a politicized Supreme Court that embarked on a liberal social agenda without benefit of constitutional support, aided by a legislature whose leadership was eager to immediately carry out the Court's instructions in the face of widespread public opposition.

In both the Brigham (school finance) and Baker (gay marriage) cases the Vermont Supreme Court overturned holdings of conscientious Superior Court judges, summarily rejected the defenses presented on appeal by the State's attorney's general, threw precedent out of the window, concocted outlandish theories of constitutional rights out of 18th Century language that has meant something completely different for over 200 years, plunged headlong into the "never-never land" (Justice Dooley's telling phrase) to produce its version of necessary results, and (in the gay marriage case) bullied the legislature into doing the Court's bidding by promising even worse if the legislature failed to toe the line.

Judicial independence is an important value. On constitutional questions, especially, the people ought to give the benefit of the doubt to judges even when their rulings are unpopular. But that deference is due only to a Court which has the self- discipline to interpret the plain language of the document, considers the meaning as understood by those who framed it, gives heavy weight to years of judicial precedent, and holds the view that when changes in an 18th century constitution are required, they must be made ultimately with the approval of the people through the amendment process.

The present Supreme Court clearly flunks that reasonable and long accepted test. So what can the people of Vermont do about it?

Until 1974 there was a relatively straightforward remedy. Justices were subject to reelection by the legislature every two years. No Supreme Court justice has been denied reelection in this century. Since 1974 the legislature has reelected justices on a six year cycle. This last occurred in 1999, and although 71 votes were cast against Justice Dooley, the architect of Brigham, the legislature handily reelected all three Brigham justices. There will be no further such opportunity until 2005.

Then there is the atomic bomb remedy, impeachment. No Vermont justice has ever been impeached. The grounds for judicial impeachment in Vermont are not spelled out beyond "maladministration". Most would agree that they include insanity, senility, criminality, absenteeism, treason, bribery, and self-interest, none of which are at issue in the current Court. Whether a justice can properly be impeached for abandoning the peoples' constitution to impose his own version remains an open question.

Then there is recall of judges. In 1986 California voters recalled two Supreme Court Justices, not for any of the above reasons, but for their refusal to enforce capital punishment. The Vermont constitution contains no provision for recall.

Theodore Roosevelt, to liberal applause, offered another remedy in 1912: if the Court strikes down a legislative enactment, the legislature or the people can put the overturned law out to referendum. If the voters approve it, the Court decision is thereby overturned. This has never been tried anywhere. No state Supreme Court today would countenance such a result.

In 2003 the legislature can start the process to amend the constitution to overturn a specific decision such as Baker. Sen. Vince Illuzzi offered such an amendment last May, but Senators rejected it 9-21. But even adoption of such an issue-specific amendment would not deal with the underlying problem of the Five Supreme Legislators doing the same thing over again when another suitable case came their way. It would take years for a conservative governor to make over the court through new appointments. The oldest current justice, James Morse, does not face retirement until 2010.

One could envision a running battle between legislature and court. The court strikes down a statute. The legislature passes a slightly different statute to replace the one struck down, or a law prohibiting a state official from carrying out the challenged decision (i.e., imposing a civil fine on a town clerk who issued a gay marriage license). Plaintiffs secure a new Supreme Court decision of unconstitutionality, and so on until somebody blinks. Something like this happened in West Virginia, which refused nine U.S. Supreme Court orders requiring it to compensate Virginia for its share of that state's pre-Civil War debt. In 1919, after 41 years of fruitless negotiation and 13 more years of Supreme Court litigation, West Virginia gave in and paid.

Such a running battle might be the best a legislature could do to rein in a runaway Court, at least until 2005 when the Five Supreme Legislators can be dismissed. That strategy would require the cooperation of House, Senate, and Governor,two thirds of which are not likely to be so inclined during the next two years.

To rein in this Court, the Court's critics will probably have to shoulder the task of keeping the judicial activism issue high in the public consciousness for four more years, and voters will have to pay special attention to the views of the legislators they elect in 2004.

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