A senior federal judge once pulled me aside in the hallway of the court and asked, with a twinkle in the judicial eye, if I didn’t worry about burning bridges when I wrote critical of sitting judges.
"Burned bridges? No judge," I exclaimed. "I know how to swim."
The truth is that poking fun at a judge is like shooting fish in a barrel. It’s low sport for bullies of all stripes, and I can be a bully. The robe-wearing class is prohibited from striking back, at least publicly. Why it might have a distinctively non-judicial appearance to swing at a critic. Judges are supposed to have thick skins.
I suspect most do. But I wonder, sometimes, about the politics of discretion. There are a thousand and one ways a judge, or a court, can express its priorities. One is the simple failure to act. Try as you might, you just can’t force a judge to write an opinion or decide a case. When is the last time anyone can recall a writ of mandamus’s compelling a judge to do his or her job?
You do recall former Supreme Court Justice William Sullivan, don’t you? He once sat on publication of a Supreme Court decision because he thought the timing of the decision’s release might affect the prospects of a colleague to replace him as chief justice. The Supreme Court being the sort of collegial place it is, a fellow justice filed a judicial grievance. The end result was a tempest in a teapot yielding a slap on the wrist for the former chief justice.
The assembly line of justice has foremen. They wear robes. Decisions are sometimes reached, or not reached, for reasons peculiar to the foremen.
Is that is what is going in the Connecticut Supreme Court today as regards the Bridgeport school board?
Last summer, I was asked to represent a couple of elected members of the Park City’s school board. They had been ousted from office and replaced with so-called experts appointed by the state Department of Education. At first, I turned the case down. I was on vacation. I needed a rest. I referred the case to a colleague and good friend.
But the more I thought about the case, the more upset I got. The executive branch had replaced elected school board members? Doesn’t the vote count? Under what circumstances and when does the state get to decide that democracy is merely one option among many when it comes to governance? I called the lawyer to whom I had referred the case, and asked if I could get back in. Game on. We sued.
We spent a busy few weeks in the Superior Court hammering out a set of stipulated facts with lawyers for the defendants so that issues of first impression could find their way to the high court once and for all. Democracy was dying before our very eyes. We could trace the hands of private corporations and the governor’s office in this bloodless coup. I dared call it a creeping form of fascism, and had my knuckles wrapped by my adversaries.
The Supreme Court agreed to take the case immediately. High principles were at stake, or so I thought. There was an expedited briefing schedule. In October, we gathered in the grandest courtroom in the state to argue the case. If there was a spectator there who thought the state board had a defensible argument, I have yet to meet them.
We waited for a decision in November. Then December. Then January. And now for most of February. The months follow one another in succession without a peep from the high court. In the meantime, my clients, ordinary people elected by their peers to sit on the city’s school board, are out of a job. Per diem bureaucrats are running the school: this same cast of characters looks longingly at other city schools. The administration of Gov. Dan Malloy seems as pleased as, well, the cat who just swallowed the canary. "Screw the vote," the governor all but proclaims, "our children deserve better." Let’s let Walmart run the schools.
I begin to wonder, all of a sudden, about timing and discretion and all the things that go bump in the dark of night in the Supreme Court. Why not sit on this decision until the terms of the parties expire? The court could then declare moot the controversy and avoid having to face the only conclusion possible in this case: There was a bloodless coup in Bridgeport last summer.
I would have thought the Supreme Court could muster a little passion to decide an issue involving rights so fundamental in a democracy. But I was wrong. He who controls the light switch has the power to darken any room. My clients are devastated. They thought the vote mattered; they thought they could get justice in the state’s high court.
Reprinted courtesy of the Connecticut Law Tribune.