Because They Can.... by Russ Diamond

Red flags should go up anytime a Court requires one hundred pages to explain its position, and the recent opinion by the Pennsylvania Supreme Court regarding the 2005 pay raise fiasco is no exception.

The case was unusual in its origin, as the Court reached down to combine three separate cases from lower courts for an opportunity to make a general legal opinion. One case challenged the constitutionality of the pay raise itself, while two others challenged the constitutionality of its repeal.

This combination allowed the Court to cherry pick arguments from briefs filed on behalf of many different parties in each case in order to form its eventual ruling. One wonders whether the Court would have made such a move had their own compensation not been at stake.

Logic would dictate that if the pay raise itself was unconstitutional, any issue regarding its repeal would be moot. But the Court approached it differently, establishing opinions regarding the repeal first, based upon the assumption that the pay raise was constitutional. Doing it any other way would not have allowed the preservation of the judicial raises.

While the opinion goes to great lengths to explain the necessity for an independent judiciary and demands that the other two co-equal branches of government be kept from stepping on judicial turf, it offers no reciprocal respect of the legislature’s prerogative to make a bill an ‘all or nothing’ affair by inserting a non- severability clause.

Another contradiction lies with the Court’s willingness to revisit its original ruling on unvouchered expenses, while on the other hand considering its 2005 opinion regarding legislative shenanigans with the slots bill to be rock-solid precedent. In other words, it’s acceptable to correct a twenty year old mistake but unacceptable to do the same for a decision made just last year.

The biggest insult to our intelligence, however, is the Court’s claim that it had nothing to do with the original pay raise legislation. Published reports from as early as November 2004 mention Chief Justice Ralph Cappy’s overtures to the legislature for a judicial pay raise.

The opinion opens with an explanation of the political implications of the pay raise and an account of the public fallout, including the first-ever non-retention of one of its own last year. With this in mind, the fact that the lone dissenter to this opinion is the very next justice up for retention in 2007 comes as no surprise.

The timing of this ruling raises questions as well. Is its release less than seven weeks before a general election an indication that the Court wished to ‘stick it’ to the legislature in return for botching pay raises for the judiciary? The emphasis on protecting judicial turf lends credence to the notion, as does the fact that public anti-pay raise furor has otherwise taken a hiatus of late.

In legalese, the Court needed one hundred pages to delineate why they restored their own pay raises, but in plain English it takes only three words: Because they can. This should come as no surprise to citizens who regularly follow the Court’s slicing and dicing of the Constitution’s plain language.

The usual follow-up to the brazen ‘because we can’ position is an equally arrogant question: So waddaya gonna do about it? The Court’s opinion actually hints at the answer.

“In our democratic form of government, there are other methods, besides lawsuits, which may serve as a corrective tool for legislative excesses, the primary method being the political process. This case has borne out the effectiveness of that process,” the Court notes.

The opinion fails to mention, however, that the same option is available to address judicial excesses. Pennsylvanians who wish to regain control of their government should choose to not retain members of the judiciary at future elections, following the precedent set last year with Russell Nigro.

Not just because we can, but also because it’s the right thing to do.