The Pulse: A chief justice's time to eschew partisanship?

Posted: August 12, 2012

Picture this: A conservative Republican chief justice is called upon to decide the fate of one of the most partisan issues of our time, and, surprisingly comes down on the Democratic side.

Health care and John Roberts?

Actually, I was thinking of voter ID and Pennsylvania Chief Justice Ron Castille. There is a plausible scenario whereby he will cast the deciding vote regarding the controversial new law. And while his brethren might rule along party lines, Castille has a history of flexing his independence.

With the testimony concluded in the challenge to the state's voter-ID law, a decision is soon expected from Judge Robert Simpson of Commonwealth Court. Regardless of what he decides, this matter is destined for the state Supreme Court, which currently consists of six, rather than the customary seven, members. Republican Justice Joan Orie Melvin was recently suspended after being criminally charged, leaving the court with three Republicans and three Democrats, and Castille in a position of power.

As goes the state Supreme Court, so will go the law. It's doubtful that any effort to put this before the federal judiciary will be successful, as this challenge is predicated upon the commonwealth's constitution.

Castille, the war hero who left a leg in Vietnam, has never felt compelled to toe a party line. That independence has spanned his career. In 1987, it was Castille, then the Republican district attorney in Philadelphia, who appeared alongside Democrats - Gov. Bob Casey, Mayor Wilson Goode, and former District Attorney Ed Rendell - in support of Casey's judicial selections.

And just eight months ago, it was Castille who distinguished himself in an otherwise partisan 4-3 ruling when the state Supreme Court threw out a redistricted legislative map designed to benefit the GOP. Castille joined Democrats Max Baer, Deborah Todd, and Seamus McCaffery in forming a majority that overturned the plan. Republicans Melvin, Michael Eakin, and Thomas Saylor dissented.

Voter ID could be a repeat of that lineup, minus Melvin. When Simpson's ruling is evaluated, Justices Baer, Todd, and McCaffery might line up in opposition to the law. Justices Eakin and Saylor could take the opposite tack. Castille would constitute the sixth vote, and any 3-3 tie would simply uphold what Simpson rules.

Here are two scenarios:

If Simpson overturns the law and the remainder of the court splits along partisan lines, Castille could become a fourth vote in support of the overturning, or could be the third vote in disagreement. Either way, Simpson's overturning would stand.

But if Simpson supports the state constitutionality of voter ID, and the remainder of the court splits along partisan lines, Castille would be the decisive vote. He would either become a critical fourth vote to overturn Simpson's ruling, or a third vote of affirmation.

There are lots of intangibles here. By this logic, should Simpson overturn voter ID, the law would likely stay overturned. But if he upholds the law, all eyes would shift to Castille to see whether he would stand in the way of this becoming Pennsylvania's partisan equivalent of Bush v. Gore.

Presumably, Roberts did not want a repeat of that decision on his watch, choosing instead to underscore that we are a government of law, not men.

His court's ruling on the Affordable Care Act denied the naysayers the opportunity to say that the review came down solely to the party of the president who nominated each justice. That motivation would explain the way Roberts facilitated the decision. His opinion did not expand the Commerce Clause. It did not extend the taxing authority. It simply saved a statute that was otherwise imperiled, to preserve the impartiality of the court.

Similar thinking might motivate Castille.

In the voter ID case, the commonwealth acknowledges that there is not a single known case of the type of voter impersonation the new law seeks to preclude, and, by the state's estimate, nearly one million voters lack the primary form of acceptable photo ID. Thus, it would seem that only a partisan opinion could sustain the new law. That's a legacy I doubt Castille will embrace.

Castille was elected to the bench in 1993 at a time when the commonwealth's highest court needed a rebranding in the aftermath of a scandal. He might soon cement that legacy by again ruling based on merit and not politics.


Contact Michael Smerconish via www.smerconish.com. Read his columns at www.philly.com/smerconish.

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