Backlash Mounts as the Louisiana Supreme Court Prepares to Seat First Black Chief Justice

From a press release sent out today:

Justice Bernette Joshua Johnson, who has served as an Associate Justice on the Louisiana Supreme Court for nearly two decades, is poised to assume the office of Chief Justice in February 1, 2013, upon the retirement of the current chief justice.

She follows in an unjustly short line of African American jurists to serve on the state’s highest court: Justice Jesse Stone was appointed to briefly serve in 1979. Justice Revius Ortique was elected to a seat on the Louisiana Supreme Court in 1992.

First elected to the state’s highest court in 1994, Justice Johnson is the second longest serving judge currently on the bench. In accordance with the Louisiana constitution, Justice Johnson is the justice next in line for the office of Chief Justice upon the retirement of the current Chief. Though the state constitution is clear, a controversy is being hatched where none should exist.

Catherine D. Kimball, the retiring Chief Justice, has called for a hearing to determine who will succeed her. She has also issued an order recusing Justice Johnson from sitting on the panel who will determine how the matter will be settled.

“I’m at a loss as to the basis of Justice Kimball’s order,” said Ron Wilson, one of the lawyers who successfully sued the state of Louisiana in 1986 for Voting Rights Act violations related to the state’s method of selecting Supreme Court justices. “The constitution says who the chief justice will be, not the state Supreme Court.”

"Any effort to deny Justice Johnson the right to serve as Chief Justice is clearly an affront to the Voting Rights Act,” said Marc H. Morial, executive director of the National Urban League and a plaintiff in the original law suit.

This issue has its roots in a consent decree that the state of Louisiana signed after losing Chisom v. Roemer in the U.S. Supreme Court in 1991. In that case, Ronald Chisom and other plaintiffs successfully argued that Louisiana’s system of electing Supreme Court judges effectively ensured that black voters would never be able to elect a black justice to the court.

Five of the state’s seven Supreme Court justices were elected from single-member districts. But New Orleans was combined with several surrounding parishes from which the two remaining justices were elected. Based on data from the 1980 census, expert demographer Cedric Floyd concluded that the population of New Orleans was large enough to justify that the city elect its own justice. Yet, by gerrymandering a large two-member district, the state diluted black voter strength and all but insured that the voters of New Orleans, a large majority of whom were black, would never be able to elect a state Supreme Court justice of their choosing.

“New Orleans by itself was the same size as the five single member districts. New Orleans could have constituted a district by itself,” Wilson said. “We argued that the way things were constructed, there was no way a minority person could ever get elected.”

“Black folks were a majority in Orleans Parish, but when you combined them with Jefferson, St. Bernard and Plaquemines parishes, they were only 30 percent, and that’s a dilution of black voter strength,” said Ernest Jones, a civil rights attorney familiar with the case. “So a lawsuit was filed in federal court saying that that method was unconstitutional and should therefore be done away with.”

After the U.S. Supreme Court ruled in Chisom’s favor, the state and the plaintiffs entered into a consent decree that would provide the most expedient way to give New Orleans voters a chance to elect their own member of the Louisiana Supreme Court. Rather than wait six years until the term ended for one of the sitting justices elected from the multi-member district or change the state constitution, a long and arduous process, it was decided that New Orleans voters would elect a member to a newly-created seat on the state 4th Circuit Court of Appeals.

It was clearly understood from the beginning that the judge would never sit on the 4th Circuit. Rather, as provided for in Louisiana Revised Statute 13:314.4, she or he would “be immediately assigned to the Louisiana Supreme Court.” Moreover, the statute states, “While assigned to the supreme court, the judge shall participate and share equally in the cases and duties of the justices of the supreme court during the period of the assignment. Further, the judge shall receive the same compensation, benefits, expenses, and emoluments of office as are now or as may hereafter be provided by law for justices of the Louisiana supreme court.”

Cedric Floyd, who now serves as a member of the Jefferson Parish School Board, said that the Louisiana Supreme Court itself has always treated Justice Johnson as if she were second in seniority only to Justice Kimball.

“When someone other than a Supreme Court justice sits on a case, that is noted in the record. But they don’t note that in any cases reported out of the Supreme Court when Justice Ortique or Justice Johnson sat from 1992 to 2000.”

This case has broad national implications. It was in Chisom v. Roemer that the U.S Supreme Court established the principle that the Voting Rights Act applied to the election of judges. A denial of Justice Johnson’s right to assume the helm of the Louisiana Supreme Court would have the effect of chipping away at the gains embodied in that Supreme Court decision.  Chisom v. Roemer has been discussed by legal scholars in more than 500 law review articles, journals, and magazines. It has been cited more than 250 times by the United States Supreme Court and other federal courts throughout the country.

"Generations struggled for equal voting rights in Louisiana and the rest of the US,” said Bill Quigley, an attorney who has been working on this case since the beginning. “African American voters elected Justice Johnson to sit on the Louisiana Supreme Court after the US Supreme Court ruled in this case that the Voting Rights Act applied to the Louisiana Supreme Court.  It took over 150 years for Louisiana to allow an African American Supreme Court Justice.  We have come too far to allow anyone to turn the clock back now."

“The consent decree gave us relief moving forward from 1992, but it did nothing about all of those cases that were decided in the decades before black voters had an effective voice,” said Lolis Edward Elie, a veteran civil rights lawyer. “We accepted that compromise.  For the court to now circumvent the U.S. Supreme Court ruling and the consent decree undermines any sense of justice.”

Justice Johnson enjoys tremendous support in the New Orleans community where she is admired as a jurist and recognized for her fairness and concern. Before serving on the Louisiana Supreme Court, Justice Johnson, Justice Johnson was a Judge of Civil District Court for ten years. She is a graduate of Spelman College and was the first African American woman to graduate from the Law School at Louisiana State University. Earlier in her legal career Justice Johnson served as managing attorney of the New Orleans Legal Assistance Corporation, where she represented the interests of over 3000 working poor and moderate income families in the New Orleans area.

“Justice Bernette Johnson isn’t a token judge; she’s a real judge,” said Ron Chisom, the name plaintiff in the original law suit and an active participant in the effort to ensure that Justice Johnson ascends to the Chief Justice seat. “I’m honored to play any role in fighting for her.”