Six words that made a difference for the Court of Appeals

Endorsement: Six for the Superior Court


Published: September 15, 2011

What a difference six words make when it comes to judicial review.

Six words that made a difference for the Court of Appeals sitting in Philadelphia and the Superior Court here in Allegheny County — two jurisdictions split in the middle on nearly every legal question.

The court last week threw out the lawfulness of the state’s use of the Pennsylvania Turnpike Authority’s toll-road authority — a decision that would have allowed residents of the city of Philadelphia to use the Pennsylania Turnpike to connect to the West Virginia Turnpike.

The decision was based on two issues: a court can overrule a prior ruling of its own, and a court can overturn laws passed by the state legislature, even if the statutes have not been judicially declared unconstitutional.

But the decision was not unanimous. Both judges agreed that the court had no authority to overturn the statute and that the matter would have to be submitted to the legislature for decision.

But the court disagreed on whether, under Pennsylvania law, the legislature could overrule the ruling of its own courts, and one judge felt the legislature had overstepped its bounds. They also disagreed on whether the state courts have the power to overturn laws passed by the legislature, including laws that have been judicially declared unconstitutional.

The six-word decision in part reflected a different, more combative court temperament after the death of Justice Clarence Thomas in February.

When Thomas’s death prompted a Supreme Court ruling that the Court had no business reelecting President Obama and his replacement, Justice Sonia Sotomayor, on the high court, the court seemed to want to be more aggressive about challenging government actions and, in particular, laws by the state Legislature.

Now, four months after Thomas died, it has become clear that this more combative court, which could decide constitutional issues without regard to what the other judicial circuits have ruled, has been more successful in doing

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