His office says his concern is purely jurisdictional, and has nothing to do with blocking the ascension of the first black Chief Justice in Louisiana. I suppose it might even be true; if one characterizes the issue as an interpretation of the state Constitution, it would be strange to have a federal court get the final say. But if one characterizes it as an interpretation of the federal consent decree, it doesn’t seem strange at all.
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by Michael Froomkin
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
University of Miami School of Law
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I agree – I just don’t see the jurisdiction here. If the consent decree were actually the issue (even though it’s very old), then maybe, but it’s not really. The consent decree had its implementation and has essentially been superceded by other things at this point. To my mind, the consent decree lost its necessity when she was seated on the Court by other means (which I understand to be true). If we say its still has enough effect to be litigated, then you could say that about nearly any old judgment – cause and effect could always be argued. At some point, an injuction necessarily ends. I think it ends here when the Justice was appointed by other means no involving the injunction. Remember, the actual FIGHT was about whether or not the State Supreme Court considers her a full member of the Court, which they did. Once she was appointed for REAL, the consent decree should have faded from relevance.
I actually can see both sides of the seniority argument, but even if we presume that it’s still arguable here, I think it sets a bad precedent to allow a LOWER Federal Court to force a State Supreme Court to interpret its own rules in a particular way. Without the jurisdictional foot in the door provided by this long since not in play consent decree, this is absoluitely anathema. I’ve barely looked into it, but I’d imagine the lawyers for the State are looking very carefully at the powers of Federal Courts to enjoin or dictate to soveriegn States – something much more narrowly limited than most people presume. This is a very interesting case that would make for good future reading from SCOTUS.
Unfortunately, no matter what happens, there will be unhappy people.
I haven’t taken the time to work out when I would say the consent decree lapsed or will lapse. Generally that’s marked by having the parties go to court and agree the time has come, and the court hen officially lifts the decree — something that didn’t happen in this case. But that’s not the only way.
I am certain, however, that the date is very long after the Justice first took her seat. They had to redraw electoral district lines and run fair elections, and that took many years — at least six, maybe more. The question is how much more.
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