Last month, Pennsylvania’s Supreme Court voted 4–3 to remove the power to draw federal district lines from the legislature and keep it for themselves. Having done so, the Democratic majority on the court proceeded to draw a Democrat-friendly map just in time for the 2018 midterm elections.
They thought they had outmaneuvered the legislature, but the justices forgot that legislatures always have the final say about rogue government officials. On Tuesday, Republicans in the Pennsylvania House took the first step in exercising their constitutional power to impeach the justices and remove them from office. It was the right thing to do.
Democrats Do an End Run Around the Law
In February, I wrote about the state supreme court’s decision in League of Women Voters v. the Commonwealth of Pennsylvania. The case was a constitutional challenge to the lines the state legislature drew for federal House districts in 2011. The 2011 district lines, it must be said, were an offense to the eye and a nakedly partisan ploy to maximize Republican seats. They were also undoubtedly legal and did not violate either the state or national constitution, which is why early challenges to them were turned away.
What changed in 2017? The Democrats gained a majority on the state supreme court (in Pennsylvania, the voters elect judges). All of a sudden, the rule of law and precedent went out the window, replaced by the rule of political expediency. So the court imposed a standard on districting that they invented out of whole cloth. Never before had that court interfered in what had been universally understood to be the legislature’s job, but the Democrats needed a win so they took one, by hook or by crook.
The state constitutional provision on which the power grab balanced was the guarantee that “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Some version of this guarantee has been found in every version of the commonwealth’s constitution since 1776, but until last month no one thought it restricted the way district lines were drawn. The court’s new majority interpreted a provision guaranteeing free elections the way sore losers declare results on the playground—it’s always either “I won” or “you cheated.”
Having created the standard, the court gave an artificially brief time for the Republican legislature and Democratic governor to come together on a map that would meet it. When that didn’t happen, the court said “game over” and imposed a map of their own, further usurping the legislature’s authority. The act was so brazen that one member of the five-justice Democratic contingent, Justice Max Baer, could not bring himself to agree to it and joined the two Republicans in dissenting.
The result was a map that favored Democrats at every turn. While the rules the court invented were value-neutral on their face, rules alone cannot decide a map. Whenever the choice came up to include one township or another, the court invariably chose the one that resulted in a more Democrat-friendly map. In the end, the coup against the legislature was complete and the Democratic politicians in judges’ robes had won. Or so they thought.
Emergency Brake on Runaway Judges
There is one constitutional provision that the judges did not consider: the power of impeachment and removal from office. Pennsylvania’s constitution mirrors the federal document in this respect, requiring a majority of the House to impeach someone and a two-thirds vote in the Senate to convict. Pennsylvania Republicans, controlling 59 percent of the House and 68 percent of the Senate, are not just making noise: they have the votes to finish the job.
This has produced the predictable, if hypocritical, howls of outrage from the Left. Although the #Resistance is hell-bent on impeaching President Donald Trump for a variety of “crimes,” real or imagined, the moment they gain a majority in the federal House, they take to their fainting couches at the sight of the word “impeachment” being used against the Pennsylvania justices.
Claims that Republicans are undermining the rule of law are especially laughable. What is more in accord with the rule of law: four justices inventing a constitutional principle and usurping the power of a co-equal branch of government, or a legislature doing exactly what the state constitution gives them the power to do?