Jay P. Greene's Blog

Courts claim to be in the business of interpreting the meaning of laws.  But the oddly limited or expansive meanings that are selectively applied to the words in those laws suggest that they are engaged in a completely different enterprise — namely, politics.  The idea that courts are just another political institution has long been held by political scientists, including myself.  We tend not to be hypnotized by the black robes, marble columns,  and Latin jargon into buying the notion that judges are some sort of special priesthood, immune from and indifferent to politics.  

Judges are just regular pols without the typical reelection pressures but also without the typical resources to advance their agenda.  Legislators have the power of the purse while executives have the power of the sword, but judges just have the power of their word.   The limitation on the power of judges is not the constraint of reelection, but the constraint of having to convince the other branches and the public to do what they say.  Cultivating the image of a disinterested priesthood enhances the power of judges to get others to do what they say.  But if the judges demand too much, they undermine their priestly image and erode their future power. 

Judges have been in a particularly strong position to get others to do what they say for the last five decades.  Early in the civil rights struggle our democratic institutions failed us, protecting obviously unjust and illiberal practices.  After initially siding with these illiberal forces (see Dred Scott or Plessy), the Courts detected a shift in elite opinion and joined forces with those elites to consolidate a new, progressive coalition.    The Courts could rightly take credit for having helped rescue us from the failure of our democratic institutions. 

Because they were instrumental in civil rights,  judges accumulated a considerable amount of political capital and popular goodwill.  And they’ve been spending that political capital ever since.   The civil rights era gave the Courts the role as guardians of our liberal virtue.  So, it’s hard to suggest that the Courts have overstepped their bounds, usurped the power of other branches, or arbitrarily interpreted the law without being accused of opposing the liberal virtue that Courts are supposed to protect.  Past critics of over-reach by Court included segregationists, so if you criticize judicial over-reach today on some other topic you must also be a segregationist.

This is especially true in Arkansas, where the memories of desegregation battles at Little Rock’s Central High School are particularly painful.  You cannot criticize Arkansas Courts for over-stepping their bounds or abusing their authority without being accused of being Orval Faubus — and there is no worse political insult in Arkansas.  The problem with immunity from legitimate criticism is that Arkansas Courts are especially unaccountable for judicial over-reach or arbitrariness. 

The most salient recent example of this is the action of the state Supreme Court in the Lake View school funding case.  The state constitution does  say that the state must “maintain a general, suitable and efficient system of free public schools.”  But who knew that general, suitable, and efficient meant that there was a specific dollar amount that had to be spent on every student in Arkansas?  And who knew that that amount had to increase by at least the rate of inflation every year?  I doubt that the authors of the Arkansas Constitution knew that general, suitable, and efficient meant all of these things, but the members of the Arkansas Supreme Court sure did.  And they figured out how much the legislature needed to spend per pupil and for school infrastructure by appointing Special Masters, who convened public meetings, received testimony from interested parties, and wrote a report summarizing their recommendations. 

Of course, there already exists a body for holding public meetings, receiving testimony from interested parties, and deciding upon the appropriate levels of public spending — it’s called the legislature.  With the appointment of Special Masters the Arkansas Supreme Court clearly usurped the legislature’s power.  And the Special Masters showed no restraint in determining spending priorities for the state — a power reserved by the Constitution for the legislature.  They declared: “[School districts] should have the means to meet the challenge if the State remains committed to the all-important practice of funding education first.”  Where in the state Constitution does it say that education has the first priority on resources? 

Some have argued that the responsibility to fund education first is implied by having education as the only policy area specifically mentioned in the Constitution.  I’m sorry to say that these people have never read the Arkansas Constitution.  It also specifically mentions a number of other policy areas, including the need for an agriculture, mining, and manufacturing policy.  Specifically, it says that the legislature must pass laws to “foster and aid the agricultural, mining and manufacturing interests of the State.”  If the Court and its Special Masters see the words general, suitable, and efficient as meaning that education must be supported as the first priority and at a specific, ever-increasing amount of spending, why haven’t they interpreted “foster and aid” to mean that the legislature must provide specific subsidies to agriculture, mining, and manufacturing?

Clearly we have a Humpty Dumpty Court.  The words mean what they want them to mean.  General, suitable, and efficient have expansive meanings if it suits their purposes while foster and aid mean essentially nothing.  Only judges, as the special class of high priests, possess the magical glasses that allow them to read between the lines of the Constitution to see that one phrase implies the moon while the other implies bupkis.

And now the Arkansas Supreme Court is at it again.  They are currently hearing arguments on whether a state law exempting state contracts in excess of $5 million from competitive bidding violates the state Constitition.  A plain reading of the text would suggest that it does.  The Constitution states: “All contracts for erecting or repairing public buildings or bridges in any county, or for materials therefor shall be given to the lowest responsible bidder, under such regulations as may be provided by law.” 

But Circuit Judge Jay Moody ruled that the state law did not violate the Constitution because he interpreted the provision as only applying to contracts from county governments — not contracts made by the state government and its agencies.  I’d like you to re-read the constitutional provision and ask yourself whether this is the most reasonable interpretation of the language.  Doesn’t the phrase “in any county” seem to describe the location of public buildings and bridges, emphasizing that the bidding requirement applies in all parts of the state, not the government agency engaging in the contracting?

We don’t know how the state Supreme Court will rule on the matter, but figuring that out requires a political, not a linguistic analysis.  They can and will interpret it in any way the see fit to advance their interests.  The words can mean just about anything they want them to mean.  “The question is which is to be master — that’s all.”

UPDATE:  The Arkansas Supreme Court interpreted the cluase as applying only to county contracts and upheld the state law.  The decision can be found here.