Monday, January 12, 2015


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.

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.)
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.
Sources for this post include:
Madgett, Paul W., Five Judge Rule in Nebraska by, Creighton Law Review, Volume 2, 1969. (Online.
Sheldon, Addison E. “The Nebraska Constitutional Convention, 1919-1920.” The American Political Science Review, 1921. (Online:
Earle, Herbert. The Nonpartisan League. Gaston, Harcourt, Brace and Howe, 1920 (via
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.