In addition to the high profile contests on Nov. 8, your Alaska ballot will list Alaska judges up for retention by a “yes” or “no” vote. Judges are not selected by the people or their elected representatives, so the only place democracy intrudes on the judiciary and their decisions is the retention election.
This year two Alaska Supreme Court justices, Joel Bolger and Peter Maasan, are on the ballot. Earlier this year Bolger and Maasan voted to strike down, as unconstitutional, a law providing for parental notification for a minor’s abortion enacted as an initiative by the people in 2010 with 90,000 Alaskan voters approving the initiative, a 56% majority.
In 2007 the same court struck down a parental consent law enacted by the people’s representatives, the Alaska Legislature. In doing so, the court stated multiple times, in clear and unmistakable language, that a notification law would be constitutional. Nine years later, after the public relied on their word, in a classic “bait and switch,” the court brushed aside its own previous decision and struck down the very law they said would be constitutional.
There are lessons to be learned from this blatant dishonesty. Both the U.S. and Alaska Constitutions created a democratic republican form of government, not a judicial oligarchy. Separation of powers is a critical element in each constitution, but the democratic nature of government is fundamental. The Alaska court has repeatedly violated this principle by freely striking down laws as unconstitutional, without any basis in law or history, deciding for themselves questions of society that only society has the right to decide. In his first inaugural address, President Lincoln commented on Dred Scott vs. Sanford, the ruling that held blacks had no rights and were mere property. “. . . [I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, in the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government, into the hands of that eminent tribunal.”
Abortion is clearly a subject that the judiciary will not allow the people to decide, even when the people in good faith follow the express directives of the court. Currently before the court is a case on a statute banning public funds for elective abortions. In a previous decision requiring state funding for medically necessary abortions, the court clearly stated that the State of Alaska is not required to fund elective abortions. As with parental notification, the law now before the court was tailored to meet that decision. Given this latest reversal we can expect the same for publicly paid abortions.
There is another principle that governs court decisions and its ideologically driven abortion rulings: Lex muista non est lex (Latin: An unjust law is no law at all). This standard legal maxim was originated by Saint Augustine, used by Saint Thomas Aquinas, and, more recently, by Rev. Martin Luther King, Jr. during the Civil Rights movement to describe legal racial segregation and discrimination against black people. It is applicable to the decisions of the Alaska Supreme Court as well.
The people have very limited ability to object to judicial power and decisions. The retention elections are the only way the Alaska Constitution provides. Take the time to think about the role of the judiciary and the moral nature of their decisions. The retention elections of Joel Bolger and Peter Maasan are the opportunity to express your approval or disapproval of judicial behavior. (For more from the author of “This Is Your Chance to Shape the Alaska Supreme Court” please click HERE)