Friday, January 9, 2015


Chambers of the Nebraska Supreme Court. (Judicial Branch Photo)

How divided and frustrated were the members of the Nebraska Supreme Court over the impasse in the Keystone pipeline case? 

It is rare in the Nebraska Supreme Court to have such pointed opposition show up in the court's opinions. It really broke loose and publicly in this case.

Friction is obvious as three members of the court stand their ground with their interpretation of the law, blocking a decisive opinion on the central issue: was the state law giving the state's governor the power to choose the projects route across the state. Because it dealt with content in Nebraska's Constitution a super-majority vote…five of nine judges…were needed to overturn the district court's ruling. 

Here are two revealing quotes taken from the 64-page opinion in Thompson v. Heineman.

From the four judges in the majority who were over-ruled:
“If the exercise of eminent domain over private property and the constitutional require­ments for the organization of state government do not raise matters of great public concern, then no issue could be suffi­ciently potent to give citizens the right to challenge an unlaw­ful government action. The inscription above the main entrance to this Capitol pro­claims that the ‘Salvation of the State is Watchfulness in the Citizen.’ For that inscription to have meaning, someone must have standing to defend the Nebraska Constitution.”

From the three judges who refused to offer an opinion on the constitutionality of Legislative Bill 1161, authorizing the Governor to choose the pipeline's route:
“Courts are obligated to decide the merits of cases which are properly before them, but they have an equally important obligation to refrain from deciding matters over which they lack jurisdiction. Whether or not it constitutes a matter of “great public con­cern,” the constitutional challenge to L.B. 1161 is a legitimate issue which should be decided by a court as expeditiously as possible. But it must be decided by a court with jurisdiction to do so, or the entire judicial process is for naught. We are obligated to resolve cases on the basis of how they are actually brought to us, not on the basis of how they should have been brought to us.”