Judicial politics have gotten meaner since Robert L. Brown first ran in 1990, and he’s worried about it, though that’s not why he’s announced his retirement from the Arkansas Supreme Court.
Now 70, Justice Brown would be effectively blocked from seeking re-election in 2014, when his term expires, by a state law that says judges can’t run after the age of 70 without forfeiting their retirement benefits. But he’ll leave the court two years early, at the end of 2012, he announced last week, and he said the reason for the early departure was impending large change at the court. Because several other justices are also around the forced-retirement age, five of the court’s seven members will have to be replaced over the next few years. Brown thought it might ease the transition to let one newcomer get an early start.
Brown is considered by some to be the most scholarly member of the present Court, and he’s written some of its most important decisions, including those in the landmark Lakeview School District case, in which the court found the state’s method of funding public schools to be unconstitutional. (“No longer can the State operate on a ‘hands off’ basis regarding how state money is spent in local school districts and what the effect of that spending is. Nor can the State continue to leave adequacy and equality considerations regarding school expenditures solely to local decision-making.”)
He wrote the 1994 decision that struck down voter-approved term limits for members of Congress, but upheld term limits for state legislators and constitutional officers. The decision said that the U.S. Constitution established the qualifications for Congress.
In April this year, Brown wrote the decision invalidating Act 1, which had been approved by voters at the 2008 general election. Act 1 prohibited people who were cohabiting outside of marriage from adopting or fostering children. The act was aimed primarily at gay couples, who cannot marry legally in Arkansas. Brown’s opinion said the act violated “fundamental privacy rights … implicit in the Arkansas Constitution … “
Judges are elected in Arkansas; some states use an appointive process. Brown said he’d always favored election. “I’m a Jacksonian Democrat. I prefer the process out in the open. The other way, you don’t know who’s influencing the selection board or the governor or whoever will make the appointment. And it’ll all be done behind closed doors.”(Judges are officially nonpartisan now, but judicial races were partisan races in 1990, and Brown ran as a Democrat.)
He prefers election even with the rise of what he called in a 2009 law-review article “Toxic Judicial Elections.” He’s now the chairman of a state task force on judicial elections.
Every state is facing the problem of “vicious” campaigns in judicial races, Brown said. Single-issue groups now target judges whose rulings displease them, and the removal of limits on campaign contributions — removal by the U.S. Supreme Court — allow corporations and other special interests to pour tons of money into judicial races that were previously little-noted. Third-party groups, officially unaffiliated with a candidate, go after candidates they dislike with big money and sometimes big lies. Brown has seen ads against judges “that would make your hair stand on end.” A judge might be accused of turning loose all sex offenders, for example.
In Iowa last year, three supreme court justices were ousted by opponents of a court decision allowing same-sex marriage, and this was in the kind of elections that historically had produced easy approval for incumbents.
The task force is looking for ways to dilute the poison, and that’s not easy to do without impinging on free expression. Brown said the group was studying procedures under which a judicial candidate who’d presumably benefitted from a deceitful advertisement could, and would, disavow it.
On the wall of Brown’s office is a picture of President Dwight D. Eisenhower entering St. Paul’s Episcopal Church in Richmond, Va. The photo was made in 1953 or ’54, while Brown’s father, Robert R. Brown, was rector of the church. The future justice is standing in the background. A year or so later, when Brown was 14, the family moved to Little Rock. The elder Brown had been named Episcopal bishop of Arkansas. The younger Brown attended Forest Heights Junior High School, which, like most Arkansas schools of the day, lacked air conditioning. Brown concluded that “Richmond was hot, but Little Rock was hotter.” He attended Central High as a 10th-grader, and the year after that, he was at a new high school, Hall. That was the school year of 1957-58, when the integration crisis erupted at Central, and the next year, all the Little Rock public high schools were closed to avoid integration. Brown graduated from an Episcopal school in Austin, Texas.
Thinking he’d be an English professor, he got a bachelor’s degree at the University of the South, Sewanee, and a master’s degree — in romantic literature — from Columbia University. To help pay for his education, he worked at an insurance company, and, “I got entranced by using the practical side of my brain.” He changed course, earning a law degree at the University of Virginia in 1968.
Back in Little Rock, he was in private practice first, then went into government work. He was a deputy prosecuting attorney, an aide to Gov. and Sen. Dale Bumpers, and an assistant to U.S. Rep. Jim Guy Tucker. He was back in private practice when, he said, Justice Steele Hays suggested at a party that he run for the Supreme Court too. He did, defeating Judith Rogers, a member of the state Court of Appeals. Hays became something of a mentor to the new justice. Brown was unopposed in subsequent elections. Lawyers are reluctant to challenge a sitting judge.
After he leaves the court, “I wouldn’t mind doing some teaching,” and he plans on more writing. He’s written a number of articles for law journals, and last year the University of Arkansas Press published his book “Defining Moments, Historic Decisions by Arkansas Governors from McMath to Huckabee.” Not all of his future writing will be in that vein. “I’ve done some fiction writing over the years. I’d like to take another crack at it.” The impractical side of his brain is still functioning.