In a strict party-line vote, with no legislator wandering from the path, the vote in the Kentucky Senate on 02 March was one vote shy of the three-fifths needed in order to place an amendment on the ballot next November curtailing some of the powers of judges. If the same circumstance, i.e., a strictly partisan approach, were to prevail in the House, as it surely would, the amendment possibility wouldn’t have been active, anyway. Limiting the power of the courts in this fashion would not seem likely, in any case, since the U.S. Supreme Court would probably rule it unconstitutional. The practical proof of this is seen in the fact that the SCOTUS itself had the power to decide the 2000 presidential election, and there could hardly be a power greater than that.
This doesn’t alter the fact that judges and courts often DO wield too much power. Indeed, the SCOTUS itself in its recent eminent-domain ruling allowing property to be taken from one private citizen and given to another citizen(s) is proof that a court can go strangely awry. In that case, the SCOTUS was the court of last resort, meaning that the poor citizen involved, on a thin 5-4 ruling, could just eat cake. The crux of the proposed amendment initiative in Kentucky lay in the fact that republican lawmakers felt that the courts exert too much power with regard to messing with state statutes and responsibilities. The battle among the branches of government is never-ending, and it sometimes seems a wonder that government works at all…but it does. Senator Specter, chairman of the Senate Judiciary Committee, is in a snit currently deriving from his contention that the president exerts too much power, thus relegating the Congress – especially the Senate, of course – to subservient status.
Perhaps the most egregious behavior by a judge in recent memory in Kentucky was not that of a state judge but a federal judge, and it hearkens back to the 70s. Here is a timeline excerpted from the Louisville Courier-Journal of 04 September 2005 – 1974: Directed by the 6th U.S. Circuit Court of Appeals, U.S. District Judge James Gordon orders the Louisville and Jefferson County school systems to desegregate. A plan for merging the two school systems is adopted; 1975-76: The merged school system implements Gordon's desegregation plan, which requires busing. Students are bused according to the first initial of their last name and their grade level. Under the plan, black students are to be bused up to 10 of their 12 years in school and white students two of their 12 years.
1978: Gordon ends the court's active supervision of the desegregation plan but leaves some parts of the desegregation decree in place. The school district decides to continue busing; 1984: The desegregation plan for middle and high schools is switched to a system of zones and satellite areas so most students can go to schools based on where they live. Racial guidelines: elementaries, 23 percent to 43 percent African American; middle schools, 22 percent to 42 percent; high schools, 16 percent to 36 percent. 1992: Widespread busing is replaced by Project Renaissance, a program designed to desegregate elementary schools by giving parents a choice of schools. Racial guidelines for elementaries: 15 percent to 50 percent African American; middle schools, 16 percent to 46 percent; high schools, 12 percent to 42 percent. 2000: [Judge] Heyburn dissolves Gordon's original decree, bans the use of racial quotas at Central High School and orders the school board to redesign its admission procedures at its other magnet schools before the 2002-03 school year. Throughout this period there were other judicially oriented actions.
In other words, the affair sort of came full circle. It was begun because of recommendations made in what was called the Equality of Education Opportunity report, an effort funded by the U.S. government and headed by James S. Coleman at Johns Hopkins University in 1966. It ended, for all practical purposes, because it didn’t work. This is an excerpt from the Johns Hopkins Magazine, April 2000: “As a work of sociology, the Coleman Report was full of subtleties and caveats, but the mass media and makers of policy focused on one prediction--that black children who attended integrated schools would have higher test scores if a majority of their classmates were white.” Coleman moved to the University of Chicago in 1973, and declared busing a failure because of “white flight” in 1975, barely 10 years after its introduction.
Here were two large separate school systems with elected school-boards, superintendents, and the usual bureaucracies, all mandated by state law. A federal judge, in almost the twinkling of an eye, totally disemboweled both systems and within an impossible timeframe demanded that they reinvent themselves as one system, all state law to the contrary notwithstanding, although he apparently did all or most of the reinventing. Imagine the confusion, expense, and damage done all around. This has nothing to do with race, except that in the long run everyone – students, especially – were hurt. For instance, instead of spending tax monies on educational materials, better qualified and better paid personnel, and reducing the student-teacher ratio, the system was forced to buy enough buses and hire enough drivers to carry out a plan that in ten years would be declared a failure by its own inventor.
Even worse, it established quotas and demanded that the students it was supposed to help were required to make the greatest sacrifice, at least in terms of the time, wear, and tear wasted in riding school buses, two years as opposed to ten. Nor was any thought given to the fact that people would react by moving to areas they considered far more desirable – all that at considerable expense and disruption. Even Coleman’s reason for the failure hardly washes, to wit, that white flight was the cause. If as much attention had been ordered with respect to the actual handling of academics in all the schools, the result would have been improvement all around. The judge could have watched the operation and stepped in to demand systemic improvement through proven methods, rather than completely disrupt the system. In the end, probably everyone suffered. This is a perfect example of judicial activism gone haywire, no matter how well-intentioned it might have been.
The three branches of government are necessary, but when either integrity or ignorance rears its ugly head, government suffers. The BopTrot scandal of the 90s marked the treachery of Kentucky legislators. The activism of judges, perhaps caused most often by incompetence, causes unfairness to sometimes prevail. The bad decisions of the executive, whether politically or ignorantly motivated, are hard to reverse. In the end, the courts have the responsibility and authority to put things right. When it comes to judicial decisions regarding the mechanics of government, judges should be very careful. When they overwhelmingly become corrupt, incompetent, or lazy, the state is at risk.
And so it goes.
Jim Clark.
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