The more than 200 judges President Donald Trump has appointed in less than four years in office, who are leaving a distinctly conservative mark on federal courts, will unquestionably be a part of the Republican president’s legacy whether he wins re-election in November or not.
With the nation’s highest court more conservative than it has been in decades, and the chance to appoint Maine’s next chief justice, some in the state’s legal community say Gov. Janet Mills has a chance to reshape the Maine Supreme Judicial Court into a more progressive force for racial and gender equity and criminal justice reform. Others, including a former justice, think Maine’s highest court should continue its path of restraint and avoid stepping into the role of lawmakers to make policy.
Mills is expected to choose a new chief justice later this year or early next year, and the Maine Legislature will consider the appointment as calls for criminal justice and policing reforms have intensified following a number of high-profile deaths of Black people at the hands of police. Her office said Mills looks for judges with sharp intellects, a wealth of legal knowledge and measured temperaments who will administer justice faithfully and equally, but did not say whether the governor wants to use the appointment of a new chief justice to reshape the state’s highest court.
The vacancy at the top of the court was created when longtime Chief Justice Leigh Saufley stepped down in April to become dean of Maine’s only law school. So far, Mills has appointed two justices to the court to replace retiring members. Other members of the court, who serve seven-year terms, are all in their 60s and 70s, so Mills could appoint all seven justices if she wins a second term. (It’s customary for governors to reappoint judges who want to continue serving.)
Bangor lawyer Steven Mogul believes the court should be more receptive than it has been to progressive causes, especially those concerning racism and gender identity.
“The law always lags behind societal change, but it’s important that it not lag too far behind, especially now,” Mogul, 62, said. “Kindness, compassion and acceptance have momentum and the courts, and the new chief, should reflect those values.”
Meanwhile, Donald G. Alexander, Maine’s longest-serving judge, who retired from the state’s high court in January, believes the law court should continue to review the law and only make it “when it is appropriate.”
“The court should not invade the province of the Legislature,” Alexander, 78, of Winthrop said. “The court is not an advocacy group, but the court of last resort for the judicial system. It is ultimately a reactive entity.”
In a rare moment, the court made law in 2014 when in a 5-1 decision, it guaranteed the right of a transgender child to use the school bathroom designated for the gender with which he or she identifies. It was the first time any court in the nation ruled it was unlawful to force a transgender child to use the school bathroom designated for his or her birth sex rather than gender identity.
During oral arguments, justices focused on a conflict between a 1920s law that requires separate school bathrooms for boys and girls and a provision enacted in the Maine Human Rights Act in 2005 that prohibits discrimination on the basis of sexual orientation.
Saufley, Alexander, Ellen Gorman and Joseph Jabar joined the now retired Warren Silver, who wrote the opinion, in the majority. Justice Andrew Mead, now acting chief justice, dissented, saying that the Legislature, not the court, should address the conflict in the law.
The more typical path is for the court to defer to the Legislature on policy decisions, with justices often asking lawyers during oral arguments, “Isn’t the Legislature the proper place for this issue to be resolved?”
The leaders of Maine’s legal organizations also disagree on the extent to which that pattern should continue, and whether the next chief justice should take the lead in reforming Maine’s criminal justice system.
Any reforms should be a collaborative effort involving judges, prosecutors, defense attorneys, legal organizations and the Legislature, said Thaddeus Day, president of the Maine State Bar Association.
“That joint venture is working for Maine,” he said.
But a number of reforms could simply stem from a decision by justices to look first to the Maine Constitution, rather than the U.S. Constitution, to settle criminal justice matters, said Jamesa Drake, president of the Maine Association of Criminal Defense Lawyers.
“The most controversial aspects of policing are authorized by U.S. Supreme Court decisions” based on the U.S. Constitution, Drake said, citing the ability for police to arrest people for minor offenses and to use deadly force in a variety of situations. “State courts have a choice: they can allow the U.S. Supreme Court to dictate the minimum level of constitutional protection or they can decide for themselves that as a matter of state constitutional law, the citizens of their state are entitled to stronger protections against unreasonable searches and seizures.”
The Maine Supreme Judicial Court’s approach to date, Drake says, “relegates the Maine Constitution to second-class status.”
As long as Maine’s highest court maintains that approach, the state will “be forever bound in lockstep with SCOTUS,” said Lenny Sharon, a criminal defense lawyer in Lewiston.
Changing that path will require that lawyers who argue cases before the Supreme Judicial Court be able to make persuasive arguments about provisions in the Maine Constitution, said Dmitry Bam, vice dean of the University of Maine School of Law. But until recently, law schools have not offered classes about state constitutional law.
“My sense is that the state courts are willing to listen to those arguments but we need to be teaching our students who will become lawyers how to go out and do that,” he said.
Court is limited
While the court could take a more active role in policymaking, it’s limited to some extent by the way it functions and the cases that come before it.
Unlike the U.S. Supreme Court, Maine’s high court doesn’t pick and choose which cases it will consider. It can, however, choose the cases it decides after hearing oral arguments and those it decides after reading legal filings alone. The court hears oral arguments in about 10 percent of the appeals it receives.
In the fiscal year that ended June 30, 2019, the most recent for which statistics are available, 552 appeals reached the high court, down from 574 the previous year and 625 in 2015.
Of those appeals, 396 were civil cases including divorces, child protective matters, terminations of parental rights and bar discipline cases.
The rest, 156, were appeals in criminal cases.
As of Thursday, the court had issued 110 written opinions and 61 memorandums of decision since Jan. 1. Decisions are not always issued in the same year an appeal is filed.