Will Mandates Have an Unbiased Judicial Review?

On August 11 of this year I published a column entitled Is There an Independent Judiciary When We Need It Most? (https://oregoncatalyst.com/54801-independent-judiciary.html). The point of the article was to note that three decades of unbroken dominance by Democrat governors has converted an “independent” judiciary in to just another instrument to insure that liberal policies are enforced. I noted that this was done by perverting an appointment power of the governor in Article V, Section 16 of the Oregon Constitution to subvert the requirement that judicial offices (particularly the Oregon Supreme Court justices) be elected by the voters (Article VII, Section 1). I noted that of the current seven members of the Supreme Court all had been initially appointed by a Democrat governor – the majority by Governor Kate Brown (D). Similarly, of the thirty-three member of the Court of Appeals who joined the court after the mid-1980’s, all but two were appointed by Democrat governors. That is accomplished by having sitting members of the courts retire prior to the end of their terms to enable the governor to appoint a successor. Of course the appointed person must stand for election at the next general election but he or she will be on the ballot as the incumbent and an incumbent is rarely turned away by the voters – a significant advantage to the Democrat appointees.

The comments were made in the aftermath of the retirement of Supreme Court Justice Lynn Nakamoto followed immediately by Ms. Brown’s announcement that she would appoint a successor. Understand that Ms. Brown’s appointments are not subject to review or approval by any other body – it is an absolutely arbitrary power and one that is being abused with the cooperation of justices that have been previously appointed.

The question that this routine abuse of the appointment power to the judiciary was just how independent a judiciary that cooperates with this charade might be when it comes to challenges to Democrat policies and particularly with challenges to the unprecedented exercise of executive power during the COVID pandemic.

Well, we have our answer.

The number of challenges to Ms. Brown’s authority to mandate vaccinations are increasing. Ms. Brown has fended off some of those challenges by either exempting or postponing implementation to selected public employee unions but for the majority of Oregonians that usurpation of authority is an albatross on their backs. Eventually those challenges will reach Oregon’s Supreme Court dominated by Ms. Brown’s appointees.

So what are the odds of getting an independent unbiased review by the courts? Virtually zero. And what are the odds that the Oregon Supreme Court will overturn Ms. Brown’s abuse of power? Less than zero.

So how do we know this? Well, you can have your suspicions based on this three decades of judicial appointments charade but that’s only a hint. More importantly, you simply need to look to the actions of the Chief Justice of the Supreme Court to get your answer. A September 19, 2021, article in the cooperative Oregonian* noted:

Oregon’s top judge has issued a mandate requiring all judges and court staff in the state to get their first shot of a COVID-19 vaccine by Oct. 1 or get tested for the virus twice a week.”

The Chief Justice of the Oregon Supreme Court has even less administrative authority to compromise the constitutional rights to privacy than does the governor and yet she did. Maybe buried somewhere deep in the “penumbra” of powers there is a special exception granting Democrats authority to ignore the constitutional rights of others – it seems to be a universal usurpation by Democrat governors and many Democrat appointed judicial members.

So, what do you think the chances of the litigants challenging Ms. Brown’s executive authority will be when the face the Chief Justice who did precisely the same thing – but with even less authority.

A final word of advice to those litigants – as for justice, preserve your challenges with regard to federal constitutional rights until you can enter the federal judicial system, you’re not going to get any in Oregon’s courts.


*Not a single question was asked by the Oregonian as to the authority of the Chief Justice to mandate vaccinations or whether such an order created a conflict with cases currently pending before Oregon’s lower courts. But then the Oregonian seldom pursues issues critical of the Democrat power structure.