While critics of last week’s U.S. Supreme Court rulings on same-sex marriage raise cries of judicial activism, the Arkansas Supreme Court is working on ways to improve public understanding of the role the court system plays in government.
Chief Justice Jim Hannah says he and the other justices are developing plans for an outreach campaign to engage Arkansans in a conversation about the judicial system’s function as one of the three branches of government, along with the executive and legislative branches.
"All the polls we’ve seen (show) there’s a lack of understanding of the population about the three branches of government and about government in general. We feel this outreach is very, very important," Hannah said in an interview with the Arkansas News Bureau.
"It’s so important to not only the judiciary but all three branches of government that the people understand and appreciate how this government works and functions," he said. "We can’t function in the judiciary, and the two other branches can’t function either, unless you have the support and the confidence and trust of the people."
Many lack an understanding of basic concepts such as the separation of powers, and that lack of understanding "crosses all lines," reaching even into the offices of state legislators, he said.
"You do see from time to time some legislation that’s proposed which undermines the judiciary and violates the separation of powers and the rule of law," Hannah said.
He declined to name any examples, but one proposal that likely caught his eye during this year’s legislative session was a proposed constitutional amendment by Sen. Eddie Joe Williams, R-Cabot, that would have stripped the state Supreme Court of its authority to set rules for pleading, practice and procedures and would have given that authority to the Legislature. The measure was not referred to a vote of the people.
Williams said Friday that the Legislature had authority over rules for pleading, practice and procedures prior to the adoption of Amendment 80 in 2000, so his proposal simply would have restored a power the Legislature previously held.
In 2009, the state Supreme Court partially struck down the Civil Justice Reform Act of 2003, commonly known as the state’s tort reform law, ruling that in capping awards the law infringed upon the court’s authority. Williams said the Legislature must take back the power to set rules for pleading, practice and procedures "in order to do significant tort reform."
"I understand there are three branches of government and we need to keep them separate, but we make the laws and they just interpret them. As long as they don’t overstep those bounds, we have great separation," Williams said.
Hannah said the outreach initiative will kick off with a meeting of judicial organizations in September. Other projects he has in mind include creating a speakers’ bureau of lawyers and judges to address civic groups; holding town hall meetings on the role of the judiciary; holding a "law school for the media;" inviting legislators to spend a day shadowing a judge; having a group of lawyers and judges meet with gubernatorial candidates to discuss their concerns; and getting judges involved in the orientation process for income legislators.
He said he hopes to see all of the above realized over an 18-month period, but he also would like to see some of the projects continue indefinitely. There are no plans to ask for any additional funding for the initiative, he said.
In past years the state Supreme Court has launched various projects aimed at increasing public understanding of how the court works, including the Appeals on Wheels program, in which the justices make occasional trips to cities outside of Little Rock to hear oral arguments, and the live streaming of video of oral arguments by the Supreme Court and the state Court of Appeals.
Former state Supreme Court Justice Robert Brown, who advocated strongly for both of those projects, said any new effort to help the public understand the role of the judicial branch is "all to the good."
"We want people to understand our system of government. It’s that simple," said Brown, who also has advocated for live streaming of U.S. Supreme Court hearings.
Would having cameras in the courtroom for trials also help to educate the public? That is a trickier question, according to Hannah and Brown.
Arkansas trial judges currently have discretion over whether to allow cameras in their courtrooms, but if any party to a case objects, cameras must be barred.
"The arguments you have about them becoming actors, the lawyers and what have you, as opposed to trying their case, I understand that argument," Hannah said.
Brown said objections could be raised to having cameras at a trial because "it’s a distraction, maybe. It may be just the type of case it is. It may be something that involves an issue that … might be more sensitive."
While Hannah and the other sitting justices focus on educating the public about the judicial branch’s role, public debate is raging over whether the U.S. Supreme Court acted appropriately in several recent decisions — including Wednesday’s decision striking down the federal Defense of Marriage Act, which barred federal recognition of same-sex marriages.
U.S. Rep. Tom Cotton, R-Dardanelle, called the ruling a "liberal activist decision." Republican Rep. Michele Bachmann of Minnesota said the court "attacked our Constitution."
Terri Beiner, who teaches constitutional law at the University of Arkansas at Little Rock, said in fact the court was fulfilling its constitutional role.
"The federal government is a government of limited powers. Congress is one of the branches that have limited powers, and if they exceed those powers it is generally the courts that step in and tell them they have. It is one of the primary roles of the United States Supreme Court, and that’s what they did in the DOMA case," she said.
Beiner said the principle of separation of powers applies in both state and federal government and is "basic civics."
"But I also think it’s the kind of thing people forget when they are no longer in ninth grade and are no longer taking civics," she said.