FEIGENBAUM: Chief justice’s retirement puts court at crossroads

December 2011 was one of the busier months of December the state has experienced politically.

Courts handed down a number of key rulings that added to the political complexity of the coming legislative session and election season. The state’s fiscal picture took a (strange) surprise turn for the better. Republican Gov. Mitch Daniels outlined the priorities in his final legislative agenda. And mass transit backers unveiled a comprehensive plan with high-level support.

But overshadowing all these events was the unexpected announcement by Indiana’s longest-serving Supreme Court chief justice, Randall T. Shepard, that he would step down from the high court when his term as chief justice ends in March.

You cannot overstate the positive impact Shepard has had on the state and local judiciary in Indiana (and nationally, where he is the longest-serving court leader). Replacing him both on and atop the court will be a difficult task for Daniels and the Judicial Nominating Commission. And this replacement will portend change, not only perhaps in gender and generation, but potentially in the philosophical composition of the court.

In the mid-1980s, Shepard joined a court known for its conservative bent, but not for its intellectual firepower. Because of constitutional quirk, criminal cases dominated the court’s docket, and it was unable to make much headway resolving commercial disputes or even settling general civil law. Internal bickering among Republican justices threatened to paralyze the court when Shepard was elevated to chief justice in the late 1980s, but he kept his eye on the larger picture—not on the petty internal politics.

Within just five years, Shepard was making substantial headway. He was evening out local court workloads, professionalizing court administration, and encouraging stronger candidates to seek judicial office. He also advocated key constitutional changes that allowed the court to devote more of its attention to a civil caseload, finally focusing on cases affecting Hoosier businesses and individuals, and becoming involved in criminal matters only of the court’s own choosing.

Businesses throughout Indiana came to understand that legal issues affecting their operations would be resolved on a timely, fair and consistent basis, and the quality of justices appointed to the court in the Shepard era (during which he chaired the nominating panel) was a vast improvement over prior decades.

His strong but collegial leadership style fostered an atmosphere on the bench that encouraged justices to stay. Shepard’s tenure saw the longest-serving group of five justices in Indiana history. The resulting consistency of decision-making and philosophy (over the years, first-year justices tended to side more with the chief justice than any other colleague, even of their own party) made commercial decisions easier because business enterprises were confident that the law on a given area would not change abruptly. Indiana’s Supreme Court opinions also became national models.

Shepard also has been a pillar of the community. His civic involvement has ranged from historic-preservation efforts to co-chairing (with former Gov. Joe Kernan) the commission charged with developing ideas for a leaner local government structure.

The governor has an opportunity to appoint a new justice from a generation that has yet to be represented on the tribunal (the youngest justice is 54, from a generation just learning computer-aided legal research in law school in the pre-Internet era), and Indiana remains the sole state whose court of last resort is without a female justice.

The new chief doesn’t have to be the new justice, but the nominating panel and governor could seize the initiative to select someone who could offer a new, presumably long, era of court leadership. They may favor someone who wouldn’t promote significant change in activism or philosophy, further assuring the business community of stability in one of the three co-equal branches of state government.

The judicial branch has been largely overlooked in this column, perhaps because Hoosiers have taken it for granted under Shepard’s stewardship.

Over the next two years, those longtime assumptions could be challenged as an activist General Assembly takes on hot-button issues and passes legislation that faces immediate litigation. Selection of the new justice and chief merits strict scrutiny, and Shepard deserves your thanks for his years of proud service.•


Feigenbaum publishes Indiana Legislative Insight. His column appears weekly when the Indiana General Assembly is in session. He can be reached at ef@ingrouponline.com.

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