View From a Height

Madame Justice Kourlis?

The Denver Post is reporting that the next Supreme Court Justice may come from the Colorado Supreme Court, Justice Rebecca Love Kourlis.

While Justice Kourlis was appointed by Gov. Roy Roemer in 1995, she has tended to be a strict constructionist and a proponent of judicial restraint. She wrote the dissent when then-Attorney General Ken Salazar went to bat for his party, getting the courts to usurp the redistricting power of the legislature. From that dissent:

I fundamentally disagree. Courts cannot be lawmakers under Article V of the Colorado Constitution. Courts do not enact or create laws; courts declare what the law is and what it requires. To hold otherwise violates the clear language of Article V and also the mandates of Article III of the Colorado Constitution, which delineates the separation of powers among the three coordinate branches of Colorado government.

The only authority that courts have to intervene in this purely political, legislative process is to review the constitutionality of existing districts, as we would review the constitutionality of any law, in order to protect the voting rights of aggrieved claimants. Within that limited framework, courts may enter emergency or remedial orders for the purpose of allowing elections to go forward. Such court orders are interstitial, and cannot then serve to preempt the legislature from reclaiming its authority to redistrict.

And in what's frequently a loser these days, she argues that the Colorado Supreme Court should have held off for a while:

I also note that I do not believe that this court should ever have chosen to accept original jurisdiction in this case. At the time this court did so, there was a case pending in the Denver District Court that raised all of the issues before us now, plus a variety of other legal and factual issues. If that case had been allowed to proceed, the trial court would not only have addressed all disputed issues of fact but would also have ruled on all legal theories presented by the plaintiffs. In that situation, we would be in a position to resolve the issues with a full factual record. By taking this case when we did, we unnecessarily circumvented the normal process of case resolution, and limited ourselves to addressing the constitutional issues first rather than as a last resort.

Interestingly, she also dissented in the case that overturned Colorado's voucher law on the pretext that that law violated local control over schools. Her dissent contained this paragraph:

Further, although I agree that this court authored four cases dated between 1915 and 1931 that appear to equate local control over instruction with local control over educational tax dollars, in my view, the court has already moved away from that strict formulation in our more recent cases and it would be inconsistent with those modern cases to hold the Pilot Program unconstitutional.

This would seem to place her more in the Scalia mold than the Thomas mold, since she relies on more recent precedent rather than an originalist reading of the state Constitution here. In both cases, though, she opts for actually reading the Constitution instead of making it up as we go along.

If there's one drawback to Justice Kourlis's career, it's that the words "Justice Kourlis joins Justice Coates in the dissent" appear frequently in Supreme Court opinions. No doubt some will complain that by not surrendering to the Will of the Majority, she doesn't play well with others. Naturally, there's no actual evidence of a personality disorder, just a penchant for sticking to principle.

As a side-note, this would create Governor Owens's first chance to appoint a State Supreme Court Justice. He could do worse, than MoHo, the Honorable Morris Hoffman of Colorado's 2nd District. Hoffman wrote the opinion in Common Cause's attempt to disrupt the 2004 elections by counting every ballot, valid or not. He's respected, and has a reputation in the legal community for doing his homework and taking his cases seriously.

On the downside, I have no idea how common it is for a judge to jump to the State Supreme Court straight from a district court. And while the governor would be replacing one conservative justice with another, I also don't know how obstreperous the Senate Democrats would choose to be. My personal guess is that with an 18-17 majority, there are any number of sane Senators willing to be reasonable.