Black Robed Bandits Strike Again

The outcome was as predictable as the ending to a Hallmark Christmas movie.  The Supreme “Court” of Pennsylvania ruled against a legislative resolution that would have ended Governor Tom Wolf’s emergency disaster declaration over the COVID-19 pandemic and with it the unchecked dictatorial powers he has assumed.

Using a little known law designed to provide the governor with the ability to cope with natural disasters such as floods or tornados, Wolf has for months been issueing various “orders” confining Pennsylvanians to their homes, shutting down businesses, limiting the size of gatherings (except for protests), and generally controlling every aspect of societal activity under the guise of fighting Coronavirus.

Wolf and his health secretary Dr. Rachel Levine acted unilaterally, failing to consult with legislative leaders or affected stakeholders.  This pushed lawmakers into passing repeated bills aimed at loosening the choke hold the governor placed upon businesses.  Each met with a Wolf veto.

Finally, exasperated and out of options the legislature in a bi-partisan vote exercised what was viewed as the nuclear option and passed a resolution revoking the emergency declaration.  The language of the law giving the General Assembly the power to end such declarations is clear and unambiguous.

However, the Supreme “Court” of Pennsylvania is constrained by neither statute nor the state’s constitution.  That is because it is not a court in the traditional sense.  It is populated not by jurists who seek to interpret and apply the law, but rather by activists bent on achieving political goals through judicial fiat.

The balance was tipped in 2015 when, due partially to the resignation amid scandal of several justices, three seats on the court were up for election.  The Republican Party was asleep at the switch as labor unions and their allies amassed millions and effectively bought control of the high court by winning all three seats and ensconcing a 5-2 Democratic majority.

An aura of judicial impartiality has been spun by the legal profession for generations, but the fact is courts have a partisan and an ideological bent. Some hide it better than others.  The current justices of the Pennsylvania Supreme “Court” make no attempt to do so.  This has been the most activist, hyper-partisan court in state history.

That much became evident early in 2018 when the Democratic justices, reversing an earlier ruling by the same court, deemed Pennsylvania’s congressional district lines unconstitutional.  At least one of the justices, David Wecht had campaigned for his seat on the bench calling for just such a ruling.  Despite that blatant breach of judicial ethics the ruling stood and the justices ran roughshod over the legislature imposing new congressional district lines by judicial decree.

Then legislative leaders blinked.  Rather than impeach the offending justices they let the situation stand.  So the politically charged bench remained in place, ready to trample the state constitution the next time it suited their purpose.

And so it was that exercising their King’s Bench power to pluck the emergency declaration case from the lower courts the justices came to Wolf’s rescue ironically, in effect, making him king until he decides to voluntarily relinquish his emergency powers. Any vestige of checks and balances have been extinguished in Pennsylvania.  For the time being at least Tom Wolf can continue to exercise dictatorial control over every subject in Penn’s Woods.

So what can be done?

In the short term, not much.  However, a proposed constitutional amendment giving the General Assembly the power to bring an end to gubernatorial emergency declarations has already passed the state Senate.  It now needs concurrence in the state House.  The amendment then must be approved by both bodies in the next session of the legislature when it convenes in January.  Following that it must be approved by voters in a statewide referendum.  The earliest that could happen would be May of 2021.

But also on the ballot in 2021 will be at least one seat on the state Supreme “Court,” as well as seats on the Commonwealth and Superior courts.  A number of seats will be up for a yes or no retention vote.  Voters can kick activist jurists off the courts. They should also pay close attention to the candidates who vie for those seats next November.

By taking these steps, We the People can begin to reclaim the liberty stolen from us by the black robed bandits of the Pennsylvania Supreme “Court” who have nullified our system of checks and balances and handed unbridled dictatorial power to the executive branch.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly Lincoln Radio Journal.  His e-mail address is [email protected].)

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