In a time of increasing populism, Nebraskans must ask themselves if judicial review plays too large a role in the course of state politics. On Sept. 10, the Nebraska Supreme Court handed down a 5-2 decision ordering that an amendment to the state constitution about medical marijuana be struck from the 2020 state ballot.
While the supreme court is intended as a safeguard of minority rights and against unconstitutional actions, too often the will of the people is subverted by the rulings of appointed judges and justices. Four of the seven justices on the Nebraska Supreme Court were appointed by staunchly anti-marijuana governor Pete Ricketts. Of those four justices, only one voted in favor of keeping medical marijuana on the ballot.
While three-fourths of Rickett’s appointees voting to take the decision about medical marijuana out of the hands of the people is hardly evidence of undue anti-marijuana bias, the perception of the governor’s hand-picked men taking the decision about medical marijuana out of the people’s hands is not a huge leap of logic.
The case for striking down the ballot initiative is flimsy at best, as the proposed amendment was narrow and pertained only to the use, production, possession and sale of cannabis, cannabis products and equipment. The justification for striking down the initiative was that subsections six, seven and eight were not naturally or necessarily connected to subsections one and two.
Subsections six, seven and eight deal with when, where and how cannabis could and should be used or sold. Without these subsections, no regulation would exist pertaining to working or driving while high, and no regulation would exist regarding the public use of cannabis. If medical marijuana is made legal, it would naturally follow that similar restrictions would be placed on its use as other legal drugs.
The use of a flimsy pretext to take a decision from the hands of the people is antidemocratic and un-American. By striking down the whole initiative rather than striking the last three subsections from the amendment, the courts have circumvented the right of the people to decide on this issue.
The challenge to this initiative was brought forward by Lancaster County Sheriff Terry Wagner. Between 2013 and 2015, Wagner’s department seized over $4.7 million in cash through civil asset forfeiture. By maintaining total drug prohibition it is far easier for law enforcement to justify the seizure of citizen’s property. In removing the medical cannabis amendment from the 2020 ballot, the court has placed Sheriff Wagner’s financial interest above the public health interests of ordinary Nebraskans.
In 29 states, the supreme courts are filled via appointment. In 27 of those states the governor appoints justices, in 17 of those 27 states, supreme court judges are subject to retention elections. A retention election is when the people vote not for one of a number of candidates but simply vote whether or not a candidate, or in this case justice, should retain their seat.
In Nebraska, the governor appoints a judge to the supreme court and that judge is only subject to a retention election after three years.
In three years, an immense amount of damage can be done to our democracy and civil liberties if a sufficiently undemocratic judge is on the court. The potential of such a threat to the democratic framework of the nation should be concerning regardless of your politics.
To ensure a greater degree of accountability without totally reinventing the system, a useful first step would be to hold a retention election on the soonest possible election day for newly appointed judges.
Another concern with executive appointments is that the appointees may feel partisan pressure to work on behalf of the executive rather than on behalf of the law. The partisan nature of our highest courts is of the utmost concern as it takes power from the people and hands it over to partisan elites.
Some who disagree might say that a court beholden to the masses is likely to vote based on public opinion. While this may be true, what is more likely is that justices will be more conscious of the effects a ruling might have on ordinary people rather than worrying about what the party bosses responsible for their appointments think. It is my belief that the role of the courts should be not simply to interpret the Constitution but to do so in a manner that benefits the most amount of people while also reducing the amount of harm done to other groups.
The immense power wielded by both the courts and the executives, be they governors or presidents, runs counter to the American traditions of democracy as well as the populist sentiment sweeping the nation. Power left unchecked by the people is a tyranny greater than that which the Continental Army fought to liberate itself from.
Nick Finan is a sophomore secondary social science education major. Reach him at email@example.com.