[author: Robert L. Byer]
The Legal Intelligencer
Editor's note: This article is in response to the September 12 column by The Legal's editorial board.
I disagree with the premise of the opening sentence of your September 12 editorial, "Absence of Seventh Justice Impairs Court's Ability to Act." You write that the suspension of Justice Joan Orie Melvin "left the court divided equally with three Democrats and three Republicans, creating the possibility of 3-3 split decisions."
I agree that there is a possibility of evenly divided decisions, and that as a result the Pennsylvania Supreme Court should exercise its power to assign a temporary justice. However, I disagree that this has anything to do with political party registration.
There is no evidence that our Supreme Court justices vote according to their political party affiliation. The evidence is to the contrary, including the recent decision in the voter ID case. The same is true of the judges of the Superior Court and the Commonwealth Court.
It is unwise to perpetuate the notion that political party registration has any relevance to judicial decisions. There is no such thing as a Republican or a Democratic approach to judging. Political party registration has nothing to do with judicial philosophy, jurisprudential temperament or how judges apply the law to the record in a case. That is why it is ludicrous for people to talk about which party has a majority on any of our three appellate courts.
When Governor Robert Casey appointed me to the Commonwealth Court, I was at that time a registered Republican (I have long since been registered as "unaffiliated"). There was at that time only one other Republican on the court, and some uninformed people speculated that the other Republican and I would be voting together. Although we did vote together most of the time, that is not surprising because most of the court's decisions were unanimous and there usually were Democratic judges also in agreement with us. However, when there were disagreements, the judge with whom I disagreed the most often was the other Republican.
It is not surprising that Supreme Court justices would have differences of opinion on the questions that come to the Supreme Court for decision, particularly on discretionary review. That is because those tend to be difficult questions, and there often are different acceptable rationales and answers to difficult questions.
The reason that the Supreme Court should assign a temporary justice is that there is a possibility of 3-3 splits and also the enhanced potential for decisions by only a three-justice majority in situations where one of the six remaining justices must recuse. That same potential would exist regardless of the political party registrations of the remaining justices. Perpetuating the notion that political party registration has something to do with judicial decisions damages public confidence in the judicial branch's integrity.
I think it was Potter Stewart who once commented that when reading a Supreme Court opinion, one should not be able to discern the political party registration of the author. That is the case with the current members of the Supreme Court of Pennsylvania. Our Supreme Court has done a commendable job in not allowing partisan politics to control the outcome of cases even as politically charged as redistricting. I am confident that disagreements among the justices are based upon differences in judicial philosophy and on good-faith disagreements concerning the correct rationale and resolution of difficult legal questions. Although such differences sometimes coincide with political stereotypes, in my experience they often do not.
Robert L. Byer served as a judge of the Commonwealth Court from 1990-92, the Court of Judicial Discipline from 1997-2001 and currently is a partner and chair of the appellate practice at Duane Morris.
This article originally appeared in The Legal Intelligencer and is republished here with permission from law.com.