Posted by Eugene Volokh: A Matter of Principle -- Or Whining? Is it just me, or is [1]this Complaint a bit undignified? (Thanks to [2]How Appealing for the pointer.)
On the Oklahoma court, the Chief Justiceship is a rotating position; the current Vice-Chief (Marian Opala) was Chief Justice once, and was hoping to be that again, but a rule change promulgated by his colleagues will likely keep that from happening. He's now suing, in federal court, claiming that this violates his federal constitutional rights. One of his claims is that the rule change was an attempt to keep him out of the Chiefship because of his age (he's 83), and that this violates the Equal Protection Clause. One problem: The Equal Protection Clause generally allows government officials to discriminate based on age, unless the discrimination is entirely irrational (which seems unlikely here, even if the Vice-Chief is right that he "enjoys good health and has sound mental acuity and a commitment to the duties and responsibilities of a Supreme Court Justice). He also claims that the rule change deprives him of a "property interest" in his opportunity to become Chief, and thus violates the Due Process Clause. But while the Court has at times recognized a property interest in some government jobs, it seems to me highly unlikely that the Court would recognize it here, for many reasons (one of which is that the plaintiff never had the job, nor any assurance of getting it, since his colleagues would have been entirely free not to vote for him). But even setting aside the weakness of the Vice-Chief's claim on the merits, isn't there something undignified here? First, the holder of a high judicial office is taking his colleagues to court over a relatively minor slight: The Chief Justiceship carries some extra power, chiefly the power to assign opinions to other Justices, some administerial duties, some extra pay, and some prestige, but no extra vote. Second, he's going to another court system to do it, I'd have thought that Oklahoma Supreme Court Justices wouldn't want a federal trial judge to order them around. I guess Vice-Chief Opala takes a different view. References 1. http://www.legalaffairs.org/howappealing/OpalaComplaint.pdf 2. http://www.legalaffairs.org/howappealing/2005_01_01_appellateblog_archive.html#110478898629370575 _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
