A More Modest Court

A more Modest Court: The Ohio Supreme Court’s Newfound Judicial Restraint by Jonathan H. Adler & Christina M. Adler OCTOBER OH 2008 ABOUT THE FEDERALIST SOCIETY Th e Federalist Society for Law and Public Policy Studies is an organization of 40,000 lawyers, law students, scholars and other individuals located in every state and law school in the nation who are interested in the current state of the legal order. Th e Federalist Society takes no position on particular legal or public policy questions, but is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our constitution and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be. Th e Federalist Society takes seriously its responsibility as a non-partisan institution engaged in fostering a serious dialogue about legal issues in the public square. We occasionally produce “white papers” on timely and contentious issues in the legal or public policy world, in an eff ort to widen understanding of the facts and principles involved and to continue that dialogue. Positions taken on specifi c issues in publications, however, are those of the author, and not refl ective of an organization stance. Th is paper presents a number of important issues, and is part of an ongoing conversation. We invite readers to share their responses, thoughts, and criticisms by writing to us at [email protected], and, if requested, we will consider posting or airing those perspectives as well. For more information about the Federalist Society, please visit our website: www.fed-soc.org. A More Modest Court: The Ohio Supreme Court‘s Newfound Judicial Restraint Jonathan H. Adler & Christina M. Adler and Alice Robie Resnick—“blurred the lines between the legislative and judicial branches of government and A More Modest Court: essentially turned the court into a super-legislature on several major public policy issues in Ohio.”5 Among The Ohio Supreme Court’s Newfound other things, the court invalidated several legislatively Judicial Restraint adopted tort reform measures and invalidated the state Jonathan H. Adler & Christina M. Adler system of school fi nancing four times in the span of fi ve years. he Ohio Supreme Court has changed Beginning in 2002, things started to change. Th e signifi cantly over the past six years, in large part replacement of several justices and public reaction to Tdue to changes of court personnel. Four new the court’s posture caused a shift in the Court’s overall justices have joined the court since 2002. Signifi cant orientation. As David J. Owsiany concluded in a 2004 turnover on the court has produced signifi cant change report on the Ohio Supreme Court: “Over the last two in the court’s approach to many legal issues, in particular years, the new majority reversed the court’s willingness the degree of deference shown to legislatively enacted to make public policy from the bench as had been 6 policies. the case during the 1990s through 2002.” A recent During the 1990s, the court developed a reputation report by the Center for Legal Policy at the Manhattan for aggressively intervening in controversial policy Institute likewise concluded that the change on the matters, from tort reform to school funding, as well court since 2002 has resulted in “reasonably predictable as for, as some contend, its embrace of dubious legal rulings” and a “friendlier and fairer” legal environment 7 arguments. In one 1993 case, the court was excoriated for business. Today, the court is signifi cantly more for its handling of a First Amendment case in which deferential to the legislature and less likely to expand “not one justice” on the divided court, “analyzed the or create causes of action. Only one of the “Gang of case competently.”1 In a 2001 decision, the court Four”—Justice Pfeifer—remains on the court, and he declared a federal constitutional right protected by is a frequent dissenter from the court’s rulings. substantive due process, even though the Court could Whereas the Ohio Supreme Court had previously have reached the same result on independent and declared various legislatively enacted tort reforms suffi cient state grounds.2 unconstitutional, it now applies a presumption of Between 1990 and 2002, the court repeatedly constitutionality to legislative enactments more struck down legislation or ordered the legislature consistently. Th us, in 2007 the court rejected facial 8 to adopt controversial policy measures. Th e court’s challenges to recent tort reform legislation, and upheld opinions led to charges the court was “usurping” the exclusion of certain types of injuries from those 9 legislative authority.3 For instance, one commentator covered by workers’ compensation. Th e current court noted that, in a series of opinions spanning a wide- is also largely unsympathetic to new and innovative range of issues, the Court’s so-called “Gang of Four”4— tort claims or cases that seek judicial revision of existing 10 Justices Paul Pfeifer, Andrew Douglas, Francis Sweeney, rules or statutes to facilitate plaintiff s’ actions. A 2006 .......................................................................................... analysis by the New York Times found the success rate for major plaintiff s’ fi rms before the supreme court was * Jonathan H. Adler is Professor of Law and Director of the signifi cantly lower from 2004-2006 than it had been Center for Business Law & Regulation at the Case Western in the prior three years.11 Reserve University School of Law. Christina M. Adler is an Evidence of the court’s greater deference to the attorney in northeast Ohio. Th e views expressed herein are legislature can be found in many areas. In education, solely those of the authors and should not be attributed to the for example, the court has stopped attempting to force Federalist Society for Law & Public Policy Studies, the Center a $1 billion-plus reorganization of state school funding, for Business Law & Regulation, or the Case Western Reserve University School of Law. as it had in the DeRolph litigation, and it rejected a 3 constitutional challenge to state legislation creating He previously served for eight years on the Tenth charter schools.12 Th e court has also shown broad District Court of Appeals in Franklin County. Moyer deference to other legislative actions, upholding the also worked as an executive assistant to Republican state’s nonparental visitation statute,13 domestic violence Governor James A. Rhodes and as an attorney in private statute,14 and incest statute15 against constitutional and practice. Chief Justice Moyer is generally considered other challenges. to be a centrist justice who is committed to principles While the court appears less likely to invalidate of stare decisis, and often reluctant to overturn prior legislative actions, it continues to scrutinize government decisions, even if he believes prior cases were wrongly actions to ensure they are constitutional. Perhaps most decided. Justice Moyer serves on the board of Justice at notably, the court unanimously held that economic Stake, an organization that seeks to limit the infl uence development, by itself, is not suffi cient to satisfy the of money and politics on fair and impartial courts,19 public use requirement for eminent domain actions and has expressed concern about the infl uence of private under the Ohio state Constitution.16 In other cases, campaign contributions on judicial elections. “Human the court rejected an “antiprocreation condition” nature is that we help people if they help us,” Moyer placed upon a defendant under community control as said. “And that’s the problem with this system.” 20 17 unconstitutionally overbroad, and refused to invalidate Justice Paul E. Pfeifer has sat on the court since a surrogacy contract because it allegedly violated public January 1993. Prior to his election in 1992, Pfeifer 18 policy concerns. had been an attorney in both government and private In several cases, the court has been drawn into practice. He had experience as an assistant county contentious political battles. Th e court accepted and prosecutor and served in both houses of the Ohio ruled on cases implicating gubernatorial privilege, the General Assembly.21 Th e last member of the “Gang of validity of a governor’s veto, and the composition of Four” left on the court, Pfeifer is widely recognized as county election boards. As this paper goes to press, the most “liberal” member of the court and its most additional cases are pending concerning the application frequent dissenter. By some, Justice Pfeifer has been of election rules concerning absentee ballots and early criticized for “taking an average of 291 days to produce voting. Apart form the merits of the court’s decisions each of his 21 opinions in 2006—nearly two months in these and related cases, the court’s apparent readiness longer than the next-slowest justice.”22 In one case, to resolve partisan political disputes has contributed to Pfeifer took nearly a year to pen a unanimous opinion the perception of a politically oriented court. reversing two criminal defendants’ convictions, after Th e Current Court each had already served sixteen years in prison.23 In his Four justices have been replaced since 2002. Justices defense, Pfeifer told the press “he’s slow because he puts Andy Douglas, Deborah Cook, Francis Sweeney, and as much thought into writing opinions for the majority Alice Resnick were replaced by Justices Maureen as he does in penning dissents, which he wants to be 24 O’Connor, Terrence O’Donnell, Judith Lanzinger, as entertaining as they are legally sound.” Pfeifer has and Robert Cupp, respectively. For a brief period in also been publicly critical of judicial campaign fi nancing 2003, a majority of the court’s justices were women and has suggested judges are unduly infl uenced by (Resnick, Cook, Stratton, and O’Connor).

Load more