I’ve been thinking about something I read in the Globe a while back: Jeff Jacoby wrote that the Mass SJC should throw out the popular Fair Share Amendment, which will raise taxes on the millionaires to pay for public goods like transportation and public education.
At first, I thought–no, it’s not likely that the SJC will do that. Numerous intelligent legal minds have sorted out the wording of the proposed Fair Share Amendment. Besides, Baker’s only been Governor for about three years. Surely the SJC does not have a majority of members appointed by Baker.
But then I checked and what do you know? A majority of SJC justices are Baker appointees. And now I wonder… is a Court dominated by Baker appointees going to be swayed by the right-of-center and rightwing arguments that it is wrong for millionaires to chip in toward the public good?
Court appointments matter: At the national level, the Republican Senate and Republican President are stacking the judiciary with justices and judges who are likely to favor the powerful (see also, Gorsuch and the frozen trucker.)
Baker knows he does not represent our blue Commonwealth’s values. He knows he narrowly won in 2014, and he knows he was cool with the Confederate flag (until people shamed him by pointing out it represents treason in defense of slavery.) He campaigned for undermining public school funding with Question 2. He supports ICE’s brutal campaign against non-violent immigrants, Trump’s signature issue. Baker can’t persuade a majority of the public to go rightwing, but he can undermine the public’s values by appointing judges and justices who favor his ideology.
Because the Fair Share Amendment is popular, it will likely succeed in November. And rightly so, as the T needs fixing (just today the old red line cars were sweltering hot and had to be taken out of service) and UMass Boston (which serves the working class of Massachusetts) is in dire need of funding. So many people’s lives would be better off with this funding. We, the majority, need this Amendment.
So the likely way the conservatives–you know, the people at the influential Pioneer Institute founding by Charlie Baker–can stop it is at the SJC.
Where Charlie Baker has appointed the majority of justices.
I don’t know what the future will bring, but I’m worried that Jeff Jacoby was on to something.
Jacoby makes an argument on the merits but hardly on constitutionality. Even the link from his column to Commonwealth Magazine makes at best a tenuous argument on constitutionality.
While that is a fair description of Jacoby’s column, I see his purpose in a broader context. The average Globe reader does not know the in’s and out’s of constitutionality, but they can appreciate the arguments Jacoby puts forth. Jacoby is preparing the public to see a ruling against the Fair Share Amendment as reasonable.
In the Conservative movement, Baker’s job is to appoint judges who will rule in favor of the patrons of the Conservatives (millionaires and billionaires). Remember how Samuel Alito, at the national level, came up with some arcane reason that Lily Ledbetter should not get equal pay because her boss had hid it from her for over six months? Even though there are laws on the books expressly forbidding gender discrimination in pay. That kind of arcane legalism is how the conservatives will rule against a perfectly valid proposed amendment. Jacoby is just there to give it the veneer of legitimacy.
Please let us not let the politicization that has happened to the US Supreme Court happen to our SJC. We are very fortunate to have an excellent Judicial Nominating Commission, and for the SJC, the SJC Nominating Commission, and a long history of high-quality, non-politicized judicial appointments by governors in both parties. Unlike the US Supreme Court, the SJC mostly issues unanimous decisions.
The post contributes to a subtle danger to our judicial culture that, if it ever comes to pass, will be very difficult to reverse.
Interesting post. I certainly understand the concern that the Baker majority (now five of the seven justices, which will increase to at least six if he wins another term) will pull the SJC distinctly rightward. But for now, for a couple reasons, I’m holding onto the hope that it won’t.
The first reason is that I think the SJC could rule — in a reasonable way — against allowing the Fair Share amendment to be on the ballot. This is because our state constitution does not make it easy to legislate by ballot, and the Fair Share proposal might run afoul of either of two of the several barriers the constitution presents to ballot access. (Whether those barriers are themselves reasonable is a different question.)
The second reason has to do with an issue mentioned in the post — Trump’s immigration policies. Last year, the SJC was presented with the issue whether local law enforcement officials have the authority under state law to detain a person based solely on a request from ICE that the person be held for up to two days after he or she would otherwise be entitled to be released. The court, which then included a majority of four Baker appointees, unanimously said no, a ruling that came as a disappointment to the Governor, who then had to pursue a remedy (so far unsuccessful) in the Legislature.
Fingers crossed.
I appreciate that our SJC held back the implementation of a racist policy against immigrants. That’s a good thing. It’s also a good thing that didn’t really cost the millionaires much.
I hope the SJC decides the Fair Share Amendment belongs on the ballot.
If they decide the other way, though, they will be giving a huge political win to an unpopular and powerful minority in our state, and a huge political loss to millions of middle-class and poor people who need public goods to be properly funded.
There’s the loophole that lets conservatives rig the system in favor of the millionaires and billionaires.
Jacoby’s column wasn’t worth reading: The Court should rule against the including the question on the ballot because I dont think it should pass. Sometimes I think they employ him just to make crappy “conservative” arguments.
That said, if there is evidence that the SJC is acting in a partisan manner as you suggest, I would suggest laying that evidence out.
There are plenty of reasons that the question might fail to qualify, none of which require bad faith on the part of the Court. The reason it took numerous creative legal minds to make the wording of the question is because they’re trying to evade/avoid some not-insignificant hurdles to what they want to accomplish.
Suggesting that an unfavorable ruling shows political bias on the part of the court, without any evidence to suggest that might be a thing that is happening, is the sort of thing one expects Jacoby to write. That is to say, its crap, and Democrats should be better than that.
It’s a constitutional amendment, using the amendment process provided by the constitution. It is not legislation by referendum subject to myriad constitutional restrictions (such as the measure that restricts appropriation to the Lege).
As a practical matter, I think the only disqualification for an amendment to the state constitution would be if it went against the U.S. constitution–if the measure sought to establish a state religion, for instance, or legalize slavery.
Actually, the same restrictions that apply to legislation that is attempted to be enacted through the initiative/referendum process also apply to constitutional amendments that originate that way (such as the Fair Share tax).
Then I think there is a credible argument that the Fair Share amendment is not allowed. I would expect the question to hinge on the meaning of the word “appropriate.”
Yep, that is one of the possible barriers. The other is that if the proposal includes more than one subject, those subjects must be “related” or “mutually dependent.” The question in this case would be whether the income tax increase and the expenditure of the increased revenues on education and transportation are related or mutually dependent subjects.
The “Numerous intelligent legal minds” may have outsmarted themselves. An amendment that merely authorized a progressive income tax, or that set the million dollar surtax rate would be constitutional. The Fair Share Amendment might not be. This was an unforced error.