Tomorrow morning (Thursday, Sept. 17), the Kentucky Supreme Court takes up a very important case. The court will be hearing oral arguments on a lawsuit that challenges the legality of several of the executive orders Gov. Andy Beshear has issued since the first Wuhan Chinese virus case was reported in Kentucky in March.
The governor argues that his actions have been necessary to save lives. The plaintiffs in the cases, which were originally two separate actions filed in Scott County and northern Kentucky but were consolidated for purposes of the appeal due to their similar issues, say that no matter how well-intentioned the governor's edicts have been, that doesn't matter because he exceeded his authority as outlined in the federal and state constitutions.
A protest rally has been scheduled tomorrow morning to coincide with the hearing. And while I agree with the plaintiffs that the governor's executive orders have been outside the scope of his legal authority -- and I further believe that the actions have been unnecessary overkill that have strangled the state's economy to the point where it may never recover at the cost of essential freedoms and liberties -- I don't agree with the premise behind the protest.
"We need a massive turnout of patriots at 9:30 a.m. at the capitol to show the court Kentuckians have had enough! This will influence the court's decision," states one promotional effort for the rally.
This is where I disagree. Courts should never rule on any case based on public opinion. Their judgments should solely be on the facts of the matter and the applicable laws and constitutional provisions.
We've all seen the footage of protestors in Washington, D.C., anytime the Supreme Court takes up a controversial case. We saw it in Kentucky a few years ago when federal courts were hearing matters dealing with former Rowan County Clerk Kim Davis' refusal to issue marriage licenses to same-sex couples. It's long been my belief that these protests are futile. As they should be. The Constitution is not subject to public opinion. So, why should its application be based on public whims?
There's also been a letter-writing campaign to contact Supreme Court justices to urge them to rule a certain way on this case. It's a safe bet that most of those writing are not lawyers, so they can't speak to the issues in an informed manner that centers on constitutional issues. They can only offer lay opinions. Attorneys could, of course, offer amicus (friend of the court) briefs if they so desired, but only one has been entered, from Senate President (and attorney) Robert Stivers.
Judges are unique government officials. In Kentucky, Court of Appeals and Supreme Court members are elected on non-partisan ballots, from districts that look as if a drunk monkey drew them on the map. Most of them make less sense, geographically or socioeconomically, than does the state's 1st Congressional District, which stretches from the Mississippi River all the way to the Appalachian Mountains and was drawn 30 years ago for political reasons to keep Owensboro (Daviess County) and Bowling Green (Warren County) in the same district. (An abbreviated explanation for that can be found in the penultimate paragraph here.) Federal judicial appointments are also often emphasized in presidential and senatorial elections. So it's naive to assume that partisan or ideological factors don't come into play, especially when in Kentucky, an elected judge or justice that makes an unpopular decision can find themselves with an opponent the next time they're on the ballot. That seems to be the pressure that's being put to bear on the Supreme Court justices as they hear Beshear's challenge to lower court orders that struck down some of his executive decisions.
Lots of people I've come to know and respect over the last couple of years are promoting the protest and are urging people to attend. While I hope for the same judicial outcome as they do, I hope they'll understand why I can't join them in supporting this action. If the ends don't justify the means for the governor's executive orders, they also don't justify the attempts to influence what's supposed to be an impartial decision based on constitutional principles. I'll be praying for a certain outcome, but I won't be rallying for that outcome. To do so would violate my ideals as a constitutional conservative.
Some very capable attorneys are handling the case against Beshear's orders. Chris Wiest, in particular, has been extremely effective. He's spanked the administration in every case in which he's been involved, including at least one administrative action that isn't public knowledge. Attorney General Daniel Cameron may have been late to the game in pursuing legal action, but he's been on point with his arguments once he did join the fray. They will be bolstered by a federal court decision, handed down just this week, invalidating many of Pennsylvania's executive orders. The plaintiffs have offered hard-hitting briefs in support of their positions, and have practiced and are ready for the oral arguments. They'll make a persuasive case. We have to have confidence in them that they'll convince the Supreme Court justices of the constitutionality of their positions.
Justice should never be meted out based on public outcry, especially if it comes at the expense of the facts or of due process of law. It would be wrong for Cameron to pursue criminal charges against the Louisville police officers involved in the death of Brionna Taylor simply because of loud, visible protests. It would be equally wrong for the Supreme Court to rule based on a crowd of protesters gathered outside while they're hearing the case.
I realize the foregoing opinion will not be popular in "reopen our economy and let's get society back to normal" circles, of which I'm a member. But it's the only logical opinion I can have, based on my principles and ideological beliefs.
