The Supreme Court of Alaska:

Will the Real Alaska Please Stand Up?

 

Summary of the Alaska Supreme Court Whitepaper

 

For a PDF copy of the full Alaska Whitepaper, please click here

 

Alaska, one of the most conservative states in the country, has one of the most activist Supreme Courts in the U.S.; hostile to the unborn and disrespectful to the separation of powers.

 

 

Life Issues

 

Abortion

The Alaska Supreme Court has gone well beyond the United States Supreme Court in expanding abortion rights.  Appealing to the vague privacy clause in the Alaska Constitution, the Court has found a fundamental right to an abortion.  The Court uses its interpretation of the privacy clause to strike down pro-life legislation.  For example, in State v. Planned Parenthood of Alaska, the Court struck down Alaska's parental consent statute even though it clearly met federal standards.  (This decision was still pending when Alaska's white paper was written.)  In Dep’t of Health & Soc. Servs. v. Planned Parenthood of Alaska, the Court used the state constitution's equal protection clause to overturn a statute that only allowed the Medicaid funding of abortions when the life of the mother was in danger (or if the pregnancy was a result of rape or incest). 

 

Assisted Suicide

Although the Alaska Supreme Court has found a fundamental right to an abortion, it has not done the same regarding assisted suicide.  In Sampson v. State, the court examined the history of the Alaska Constitution and determined that assisted suicide is not a fundamental right.  The Court accepted the traditional distinction between acts of commission (actively assisting suicides) and acts of omission (i.e., not treating an unwilling terminal patient), holding that only the latter may be a fundamental privacy right.

 

Healthcare Rights of Conscience

The Alaska Supreme Court is the only Supreme Court in the country to require a healthcare facility to perform abortions. In Valley Hospital Association, Inc. v. Mat-Su Coalition for Choice, the Court struck down a statute which granted hospitals freedom of conscience regarding abortion.  The Court held the hospital to be a quasi-public institution and, therefore, ruled that it was subject to the same restrictions the government itself had to observe.  The Court considered the hospital to be a quasi--public institution because it had originally been built on land given to it by the government, much of its work was reimbursed by government funds, it had an effective monopoly in the area because it was the only hospital, and it was an open membership organization anyone could join.

 

 

Judicial Restraint

 

The Alaska Supreme Court has assumed for itself very broad powers.  The main catalyst for doing so has been the Constitution's privacy clause which was added in 1972.  It reads “The right of the people to privacy is recognized and shall not be infringed.  The legislature shall implement this section.”  Using this clause, the Court has found that the Alaska Constitution protects nude dancing as protected speech, prevents the State from prosecuting possession of small amounts of marijuana in the home, and requires state and local governments to offer the same employment benefits to same-sex couples that are offered to married couples.  The Court freely admits that it has wide power to interpret the State’s Constitution and statutes.  In Baker v. Fairbanks, the Court stated that it was free to interpret the Constitution “within the intention and spirit of our local constitutional language . . . necessary for the kind of civilized life and ordered liberty which is at the core of our constitutional heritage.”

 

 

The Court

 

Herein lies the reason for the existence of an activist Supreme Court within a traditionally conservative state.  In Alaska, judges and justices are chosen through a “merit selection” system in which candidates for a vacancy are chosen by a Judicial Council.  The Judicial Council is composed of three lawyers chosen by the Alaska Bar Association, three non-lawyers chosen by the governor, and the Alaska Supreme Court Chief Justice as the tiebreaker.  Of those recommended by the Judicial Council, the governor must make his limited choice.  Because Alaska's lawyers, like lawyers in most of the U.S., tend to be liberal, few conservatives are ever recommended to the governor. 

 

Once selected, justices must stand for retention at the first general election more than three years after his appointment, and once every 10 years after that.  Such elections, however, are simple up-or-down affairs with no opponent.  The Judicial Council rates the incumbents before the election (almost always recommending they be retained) and then advertises in favor of a “yes” vote on all candidates.  Not surprisingly, it is rare for justices not to be retained.  Moreover, a series of odd quirks enabled a pro-abortion Democrat to be governor for eight years during the 1990s.  This governor appointed three of the five justices currently sitting on the Court.  The Court consists of five justices and justices must retire at the age of 70. 

 

The Alaska Supreme Court white paper contains a table of biographical information for each current member of the Court.

 

For a PDF copy of the full Alaska Whitepaper, please click here