Opponents of the Keystone XL pipeline may be upset with three Nebraska Supreme Court judges after a frustrating defeat. In fact, the blame rests with William Jennings Bryan. Pipeline supporters owe him their everlasting gratitude.
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| William Jennings Bryan (Library of Congress) |
How
on earth could responsibility lie with the long-dead giant of Nebraska politics?
How did the legendary orator stack the deck against Randy Thompson and BOLD
Nebraska?
Though
a majority of the Supreme Court argued the pipeline siting law was
unconstitutional, this state requires one more vote, a “super-majority” of five
out of the seven judges to declare laws unconstitutional.
In
Thompson V. Heineman four out seven agreed giving the Governor powers assigned
to the elected Public Service Commission was an unconstitutional act of the Legislature. Because the three remaining judges refused to vote on the main
question, the majority did not prevail. (CLICK HERE to read more about the decision from NET News.)
It’s
a rare occurrence. And only one other state in the nation has such a provision.
Why?
The
landmine which exploded under pipeline opponents last week was planted by Bryan
100 years ago. He suggested the state put a check on the court’s power. He
didn’t think judges could be trusted.
This
fact was brought to my attention by Jim Hewitt, a great resource for legal
history and the author of “Slipping Backward: A History of the Nebraska Supreme
Court.”
Bryan
marched onto the national political stage following his famous “Cross of Gold”
speech at the 1896 Democratic Party national convention in Chicago. In addition
to supporting currency based on silver as well as gold, he railed against a
recent U.S. Supreme Court decision blocking establishment of federal income taxes.
The passionate speech electrified delegates who demanded he become the
Democrat’s candidate for President. He ultimately lost but the events cemented Bryan’s
passion for limiting the power of judges.
Thirteen
years later Bryan got an opportunity for revenge against the courts on a
smaller stage. In 1919, at the peak of his political popularity in Nebraska,
Bryan delivered another passionate speech, this time to the convention charged
with revising the young state’s constitution.
Bryan
urged delegates consider an amendment cutting into the authority of the
Nebraska Supreme Court.
He
argued the existing system “empowered the state supreme court to
invalidate legislative acts by a mere majority,” according to Paul Madgett in
his 1969 article for the Creighton Law Review.
Bryan proposed requiring the support of
five of seven justices declare unconstitutional laws created by the legislature or citizen initiatives (what’s now called the super-majority). The proposal was
based on Bryan’s “belief that a single judge should not have the power to
override the will of the people as expressed by their legislative
representatives” according to Madgett.
“While one can only speculate about the
impact of Bryan's address upon the convention,” Madgett wrote, “it seems more
than coincidental that after his address a proposal implementing his suggestion
was introduced, approved by the committee, and adopted by the convention.”
This
was considered a very liberal point of view at the time. A majority of
delegates agreed with Bryan, in part to head off an even more radical
proposal from farmer-members of the Socialist-influenced organization known as
The Nonpartisan League seeking to strip all power from the court system to
invalidate bills passed by the elected state representatives. (It’s notable
that North Dakota, the founding home of the League, is the only other state
with a super-majority provision controlling its high court.)
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| A sample ballot from the Dakota Co. Herald, 1920. |
In
a special election a few months later Nebraskans were handed a ballot listing
41 proposed amendments to the Nebraska State Constitution. A third of the way
down the list, Ballot Question No. 16 asked for a yes or no on whether Section
2a of Article VI should be amended to require “concurrence of five judges of
the Supreme Court to declare laws unconstitutional.”
According
to press accounts of the elections, all the amendments passed with “decisive
majorities” (including giving Nebraska women the full right to vote). That’s
not to say there was much passion about reforming the courts or any of the
other items. One newspaper reported “the vote was extraordinarily low throughout
the state, running from one-fourth to one third of normal.”
Fast
forward 100 years. The Nebraska Supreme Court issues its ruling in which a
majority of the court, but not enough of the court, felt the state’s law on
siting a hugely controversial pipeline violated the state’s constitution.
Because
three of the judges refused to vote on that part of the opinion the law stays.
William
Jennings Bryan, with his initiative designed to protect the little guy from the
conservative forces dominating the high court, scuttled the lawsuit blocking
the construction of the oil pipeline that may some day cross Nebraska.
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Sources for this
post include:
Madgett, Paul W., Five Judge Rule in
Nebraska by, Creighton Law Review,
Volume 2, 1969. (Online. https://dspace.creighton.edu/xmlui/bitstream/handle/10504/38623/24_2CreightonLRev329(1968-1969).pdf)
Sheldon, Addison E. “The Nebraska Constitutional
Convention, 1919-1920.” The American Political Science Review, 1921. (Online: www.jstor.org/stable/1946699)
Earle, Herbert. The Nonpartisan League. Gaston, Harcourt, Brace and Howe, 1920 (via http://books.google.com)
Hewitt, James W. Slipping Backward: A History of
the Nebraska Supreme Court. University of Nebraska Press, 2007.
(Print)
The reporting of the North Platte
Tribune, the Red Cloud Chief, and the Alliance Herald, accessed via the Library
of Congress “Historic American Newspapers” archive.
