The Supervisory Authority “Disagreement” Continues On The Supreme Court

Today, for the second time in two weeks, the Connecticut Supreme Court took the unusual step of publishing on its website an order denying a motion for rehearing in a case.  (Opinions resolving appeals are always published; rulings on motions for reargument are almost never written, much less published.) Two justices–Zarella and Espinosa–dissented from the court’s decision denying the state’s motion for reargument in In re: Yasiel R., a case involving the termination of parental rights. In that case a majority of the court rejected the appellant’s claim of constitutional error in the termination proceedings, but then proceeded to invoke the court’s “inherent supervisory authority over the administration of justice” to make up a new rule concerning termination proceedings. The court then applied that new rule retroactively to provide relief to the appellant. Justices Zarella and Espinosa both issued strong dissents.

Much has been written in the past few months about the uncivil tone in many of the Supreme Court’s recent decisions and the apparent inability of the justices to “get along.” Beneath the tone of the justices’ opinions, however, is a very real, fundamental, philosophical disagreement about the proper role of appellate judges in our adversarial system of justice. (I’ve written extensively about that issue on this blog.) Through a number of dissenting opinions over the past year, Justices Zarella and Espinosa have been telling the bench, the bar and the public in general that the very rule of law is under threat. They are saying that some of the justices no longer view themselves as constrained by certain rules and legal norms that have long governed the appellate process. Some justices are not acting as judges, but as philosopher-kings.

Whether you agree with Justices Zarella and Espinosa or not, we should take the concerns they are raising very seriously.  As members of the bar, I think we have a responsibility to examine the growing philosophical divide between the judges on our state’s highest court and assess whether we think the newly dominant philosophy–which supports liberal use of the Supreme Court’s supervisory authority–advances the cause of justice based on the rule of law or, instead, promotes justice according to the rule of men and women who happen to wear black robes. If we come to the conclusion that the new philosophy promotes the latter, we should speak up (civilly and professionally, of course) and let the Supreme Court, the General Assembly and the governor know our concerns.  We should must not be passive bystanders.