The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)
Two recently passed amendments to the Pennsylvania Constitution limited the emergency powers of Gov. Tom Wolf and his eventual successors .
They were sold to the voters as a way to rein in an out-of-control government authority. That was not fair to Wolf, who used his emergency powers in line with those of most governors during the pandemic. Certainly, if the emergency declaration had actually ended in June 2020, as the Legislature voted, more Pennsylvanians would have died.
But that description of power was quite apt with regard to another branch of government: the Pennsylvania Supreme Court. That is the branch of government that could be described as out-of-control.
The current court is 5-2 with justices elected as Democrats, which is an unusual alignment that came about because three seats on the seven-member court were open in the 2015 election and Democrats won them all. The court has generally been more closely divided politically and has been controlled by both political parties.
The Democratic majority on the court has not been monolithic in its rulings. But it has held together a four justice majority of differing combinations in a series of high-profile cases of dubious legality and great political controversy.
Three such cases stand out: the 2018 congressional gerrymandering case, the three-day ballot return extension case in the 2020 election and the Emergency Act decision that the amendments effectively overturned.
These decisions addressed sensitive political issues and infuriated the Republican majority in the General Assembly. The gerrymandering case helped Democrats flip the U.S. House of Representatives in the 2018 congressional election.
The three-day ballot extension could have changed the outcome of the 2020 Presidential election. The Emergency Act case removed carefully constructed legislative oversight over a Democratic governor.
Each case was legally dubious. The rush to redraw the congressional map in time for the 2018 election, when the delay of the plaintiffs in bringing the case to court should have made that impossible, stretched the rules of ordinary judicial process.
The result was a half-baked and unfinished majority opinion that the Legislature and governor could not have followed even if they had been inclined to do so. Now Chief Justice Max Baer broke with his fellow Democrats over this rush to judgment.
The three-day ballot return extension was rendered out of whole cloth. While based on a real gap in the election statute, it so imposed the policy preference of the Justices in an area of supposed legislative supremacy that the U.S. Supreme Court probably would have reversed the decision if those additional votes had changed the outcome of the 2020 election.
Justice Christine Donohue broke with her fellow Democrats over this outlandish remedy.
The Emergency Act decision “saved” the statute by rewriting it in a way that violated the obvious legislative intention to retain the final say over extensions of emergency declarations. Justice Kevin Dougherty broke with his fellow Democrats over allowing a gubernatorial veto of legislative resolutions ending emergency declarations.
In addition to weak legal justification, these three decisions had disastrous political consequences. The gerrymandering decision led to calls for the impeachment of the Democratic Justices.
The resulting turmoil may have helped convince a majority on the U.S. Supreme Court to deem political gerrymandering a non-justiciable political question, thus insulating such gerrymandering from federal court oversight.
The three-day extension turned out to be the only serious legal claim the Donald Trump campaign was ever able to raise in its challenges to the outcome of the 2020 election. As such, nearly every Republican voting to reject electoral votes from any State on Jan. 6 mentioned it. The decision has lent the big lie of the stolen election its only legal support.
And the Emergency Act case led the legislature to propose not one, but two amendments to overturn it.
It is easy to see that these two amendments were aimed at the court and not just the governor. One amendment changed the law of presentment to the governor so that future legislative resolutions ending emergency declarations will have the final effect the General Assembly plainly intended.
This should have been all that was needed to overturn the result in that case and would have erected an effective check on executive power.
The second emergency powers amendment put into the Pennsylvania Constitution what was actually a new Emergency Act, with convoluted procedures to constrain a governor in a future emergency. It was proposed apparently out of legislative distrust that the court would interpret the first amendment fairly.
Worse, the fallout from the Emergency Act case may saddle us with a future, disastrous constitutional amendment proposal to divide Pennsylvania’s appellate courts into districts, which would further politicize the courts and render a genuine rule of law all-but-impossible.
The Pennsylvania Supreme Court is not out-of-control in general. The justices acted unanimously, though with partial dissents on other claims, to recognize broad emergency powers of the governor at the beginning of the pandemic, to reject signature verification of mail-in ballots, which would have invited partisan manipulation, and to block U.S. Rep. Mike Kelly’s, R-16th District, attempt to steal the election for president in Pennsylvania.
The court was even unanimous in condemning the extreme political gerrymander of Pennsylvania’s congressional map in 2018 and might have ruled that way if the majority had not been in such a hurry.
But unanimity in those cases came as a result of the willingness of Republicans in then-Chief Justice Thomas Saylor and Justice Sallie Mundy to vote against their party’s political interests. They have proven more responsible than their Democratic colleagues.
This state of affairs leaves those of us concerned about judicial power in a quandary. I haven’t voted for a Republican candidate for office in years, if ever.
But I am not sure I am ready for a 6-1 Democratic majority on the court as a result of the election this year of a replacement for retiring Saylor. If Republican nominee Kevin Brobson publicly affirms the legitimacy of the 2020 election and denounces Donald Trump’s big lie, I may have to consider the unthinkable.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here. His forthcoming book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” will be published in October.
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