The political fight over gerrymandering in Pennsylvania has recently taken a markedly dangerous turn. The legal battle over the Pennsylvania congressional district lines has become a debate about separation of powers, judicial independence, and the sanctity of Pennsylvania elections.
In July 2017, the League of Women Voters challenged the congressional district map drawn by the Republican-controlled Pennsylvania General Assembly in 2011. The Pennsylvania Supreme Court ruled on January 22, 2018 that the 2011 map was an unconstitutional partisan gerrymander and ordered the state legislature to redraw the map for the 2018 midterm elections. In reaction to this decision, Republican State Rep. Cris Dush claimed that the justices who “signed this order that blatantly and clearly [contradicted] the plain language of the Pennsylvania Constitution engaged in misbehavior in office.” Dush then called for the impeachment of the five Democratic Supreme Court justices who voted in the majority.
This is not an empty threat. In Pennsylvania, a state judge can be removed from office through the Judicial Conduct Board or by a majority vote in the State House followed by a two-thirds majority vote in the State Senate. With control of 121 of 203 State House seats and 34 of 50 State Senate seats, Republican legislators have the votes to impeach and remove these five justices without a single Democratic vote. In a statement on February 5, the Republican leaders of the House and Senate did not echo Dush’s call for impeachment but did say that they “may be compelled to pursue further legal action in federal court.” Coupled with the high stakes of the 2018 midterm elections, Republicans in the General Assembly have sufficient incentive to pursue impeachment.
This call for impeachment dangerously breaks with tradition and interferes with the judicial process. Since 1811, only one Pennsylvania Supreme Court justice has been impeached and removed from office. Rolf Larsen was impeached by the Pennsylvania State House for “abusing his judicial discretion” by a 199-0 vote. Larsen had been convicted in a criminal court of having court employees obtain prescriptions for him. Separately, after the Judicial Inquiry Review Board voted to reprimand him for trying to influence a judge presiding over a case of interest to him, Larsen then accused the judges that voted to reprimand him of corruption. The General Assembly ultimately impeached and removed him for letting a Pittsburgh attorney improperly influence the appeal cases that Larsen would accept. In this example, this was a clear case of judicial misconduct, and there was broad, bipartisan support for his impeachment. Larsen abused his office on multiple occasions. Importantly, the basis of Larsen’s impeachment was not a judicial decision but instead illegal behavior.
If successful, the impeachment of the five Democratic Supreme Court justices would be a partisan abuse of power. Dush claims that the Supreme Court ruling ignores the powers delegated to the General Assembly by the Pennsylvania Constitution. However, the Supreme Court was examining a law (the Congressional Redistricting Act of 2011) and the question of whether that law was constitutional, the fundamental job of the Pennsylvania Supreme Court. The Court ruled the law unconstitutional and ordered reasonable remedies to address the unconstitutionality of the law. If it is not to adjudicate the constitutionality of laws, then what is the purpose of having a supreme court?
The threat of judicial impeachments for not upholding a partisan gerrymander represents a separate and outsized threat to democratic government in Pennsylvania. If the legislature decides to impeach Supreme Court justices for judicial decisions, then the legislature is virtually creating a veto on judicial actions. Instead of the legislative branch creating laws and the judicial branch interpreting and ruling on the constitutionality of laws, the legislative branch would also have the final say on what the Pennsylvania Constitution means. How is a justice supposed to act with independence if, on a partisan basis, the legislature decides to take away their job if they rule ‘incorrectly?’
The importance of judicial independence in a gerrymandering case cannot be overstated. As Varol explained in “Stealth Authoritarianism,” other branches can use the judicial branch to rubber stamp unpopular or undemocratic actions. If the judiciary knows that impeachment proceedings follow ruling against the majority party in the legislature, then that significantly raises the cost of acting as a check on the legislature and incentivizes the courts to rule in favor of the state legislature, irrespective of the merits of the case.
The impeachment threat in Pennsylvania reflects similar efforts to undermine judicial independence across the country. In Iowa, in reaction to a disagreement over allowing firearms in courthouses, the legislature introduced a bill to have courthouses pay out of pocket for courtrooms where firearms are banned. In North Carolina, the legislature is working to remove powers from state courts that have ruled against laws passed by the legislature. In all of these cases, the neutral observer would not find any judicial overreach or abuse of power that spurred these actions. Increasingly, state legislatures are attacking the powers and independence of the judicial branch instead of adjudicating the merits of the issues at hand.
The threat in Pennsylvania to judicial independence is particularly pronounced. Since congressional maps determine the character and competitiveness of elections, unchecked partisan gerrymandering would allow state legislators to pick Pennsylvania’s Congressional delegation. The 17th Amendment to the US Constitution implemented direct elections of senators, but if judicial independence is not vigorously defended and fortified, then that won’t be the case for the House of Representatives. Unconstrained by the judiciary that fears partisan impeachment proceedings, 253 state legislators (who also run in gerrymandered districts) would pick the 18 people that Pennsylvania sends to the House of Representatives, not the 12.8 million citizens of the commonwealth of Pennsylvania.
Photo by Jessica, “Justice” (Pixabay), Creative Commons Zero License.