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Could a new Pa. Supreme Court be better for public schools?

With three vacancies on the seven-member high court there’s a chance future rulings adhere to constitutional mandates, including one on public education.

Supreme Court Justice Correale Stevens. (Courtesy: www.pacourts.us)
Supreme Court Justice Correale Stevens. (Courtesy: www.pacourts.us)Read more

TODAY, LET'S think about possibility.

Specifically, the possibility our state Supreme Court upholds the Constitution more often than when the mood strikes it to do so.

I mention this because of a record three vacancies on the seven-member court to be filled by election this year, and because, you know, one can always hope.

Let's concede that law can be a malleable thing, subject to circumstance and politics. In this state it's massaged into various shapes, sometimes avoiding constitutional dictates.

The Legislature does something (or nothing) that ends up before the court and the court says, oh, we can't possibly get involved: separation of powers.

We've all heard that, right?

But separation of powers is a doctrine, not a constitutional mandate. Yes, it's established. But it's not written in the Constitution, and it's loosely played, often more like a trump card than like settled law.

Let's look at examples.

Article II, Section 8 of the Constitution states lawmakers "shall receive such salary and mileage for regular and special sessions as shall be fixed by law, and no other compensation whatever." Pretty clear, no?

Yet lawmakers also receive millions of dollars each year in tax-free per diem expenses, no receipts required, and millions more in pension and health benefits.

Does anyone, anywhere think pension and health benefits aren't compensation? I mean, other than those on our courts clinging to separation of powers.

Article III, Section 14 of the Constitution states the Legislature "shall provide for the maintenance of a thorough and efficient system of public education."

Yet when it doesn't, as in the case of Philly schools and recently many others, the court says, well, we can't possibly get involved: separation of powers.

(Another school lawsuit is headed to the high court after Commonwealth Court last month ducked the issue again, saying it's up to the Legislature.)

Never mind that other state courts, including in New Jersey, Texas, Washington, South Carolina, have ruled to uphold constitutional mandates to fully fund schools.

I recently asked Supreme Court Justice Correale Stevens, the only sitting justice on this year's ballot, why a doctrine supersedes constitutional mandates.

"I'd like to say I'm happy you asked that question," he said, "but I'm not."

Still, he defended the court, suggesting that justices aren't lawmakers and that if they want to be "they should run for the Legislature."

Ah, but when the Legislature enacts laws the court doesn't like, the court has no problem setting separation of powers aside - and using the Constitution to do so.

You'll recall that after lawmakers repealed the clearly illegal 2005 pay raise it gave itself and judges, the Supreme Court ruled in 2006 that judges could keep the raises, citing a constitutional provision (Article V, Section 16) saying judicial salaries "shall not be diminished."

In other words, when it benefits the court, a strict read of the Constitution is fine; when a strict read would take some guts, it's another story.

So what gives?

"Supreme Court-level law is not a crossword puzzle in which there is one set of answers," says state Constitution expert and Penn Law professor Seth Kreimer.

But he also says our Supreme Court is "pretty far out there" on school-funding cases: "With three new justices and the educational system in substantial distress, it's time for the Supreme Court to step up."

Constitutional expert and Duquesne Law professor Bruce Ledewitz says the court "consistently" hides behind separation of powers on education while sidestepping it on other issues.

He notes that in 2013 it eviscerated a law making oil and gas drilling rules uniform statewide, citing a constitutional mandate (Article I, Section 27) guaranteeing a clean environment, and, recently, it upheld its authority above the executive branch (Kathleen Kane's case) to appoint grand-jury prosecutors.

Ledewitz also suggests change could come with three new justices: "That is possible. Three is a lot on a seven-justice court."

Ah, possibility, something to think about.

Columns: ph.ly/JohnBaer