The rest of the Brock impeachment story

It’s a tale of eroding checks and balances on the judiciary

The purpose of this essay is not to take issue with the excellent article, “New Hampshire’s Impeachment Crisis of 2000,” appearing in the March 16-29, 2018 issue, but rather — in the tradition of the late Paul Harvey — to tell “the rest of the story.”

A basic civics education would teach that there are two aspects to the relationship of the three branches of American government: separation of powers and checks and balances. Together, these prevent – or at least impede – the institutional motivation of each branch to exceed it authority.

The effects of the so-called “judicial modernization” that occurred in New Hampshire with the constitutional amendments to Article 72 in 1966 (giving the Supreme and Superior Courts constitutional status) and Article 73 in 1978 (making the chief justice the administrative head of all the state’s courts) has been to remove any effective legislative or executive branch check on the judicial branch, thereby to invite the judiciary to invade the domain of both.

The 1990s Claremont school-funding cases, by which the Supreme Court constituted itself the supreme education policymaker, was the culmination of a series of cases by which the David Brock Supreme Court tested the willingness of the Legislature to resist the modus operandi the court adopted in the 1980s of elevating ordinary policy choices into constitutional issues in order to be able to arrogate to itself final authority to decide them. State v. LaFrance, cited in the article, was the first such test, and the Legislature responded as the court hoped it would, by doing nothing.

The “judicial power,” correctly understood, is very limited, consisting only of the authority of a court to decide cases-in-controversy properly coming before it, and having its adjudications respected.

As Alexander Hamilton noted in No. 78 of The Federalist Papers, the judiciary is dependent upon the legislative branch for its funding and upon the executive branch for enforcement of its decisions. But having – as a matter of constitutional law – made the chief justice its administrative head, it is only a matter of time before a decree will be issued, under cover of Article 73-a, declaring the chief justice the final authority on the needs of the New Hampshire court system, the funding of which by the legislature will be deemed mandatory.

Judicial incursion into the legislative function under cover of Article 72-a has long since ceased being theoretical. By the subterfuge of elevating perfectly ordinary policy issues to constitutional status, the Supreme Court – on the pretext that it is merely interpreting the constitution – has been able to take over any aspect of public policy it wishes.

Prior to the advent of Article 72-a, the Legislature could – and several times in the 19th century actually did – respond to such shenanigans by abolishing the courts by simple legislative enactment, thereby effectively firing the judges and immediately afterward creating a new court system staffed by new judicial appointments.

This was a harsh remedy to be sure, but its viability and ongoing availability served as an effective check on judicial arrogance and megalomania that is now totally lacking. The Supreme Court used to have to pick its fights with the legislature carefully. It no longer does, and it doesn’t.

Prior to “judicial modernization,” the courts, adjudicating under the watchful eye of the Legislature, refrained from substituting their policy preferences for those of the people’s elected representatives, confining themselves instead to performing the true functions of judicial office.

Since the advent of “judicial modernization,” not only do the Senate and House of Representatives of legislate at the sufferance of the Supreme Court, but if they do not legislate as the court wishes, the court will do the job itself. Thus New Hampshire has followed the unfortunate national trend whereby policy change emanates ever-increasingly from decisions of supreme courts, to such an extent that the judiciary has in many cases superseded the elected branches as primary policymaker.

Attorney Gregory M. Sorg of in Franconia is a former four-term member of the NH House of Representatives, in which he served as vice chairman of the Judiciary Committee and vice chair of the Constitutional Review and Statutory Recodification Committee.

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