Law, College of


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Federalist Society White Papers (March 2009), 14 p.


Copyright 2009, Federalist Society. Used by permission.


Nebraska is the “Big Red” state, both in football and in politics. The people of Nebraska are conservative and they wish to rule themselves, either directly through the retained powers of initiative and referendum, or indirectly through the process of self-government and laws enacted by their democratically-elected representatives. Government by the judiciary is simply not the way we do things in Nebraska.

The people of Nebraska are fortunate to have a state Supreme Court so much in tune with the will of the people. As this Report has shown, recent decisions of the Nebraska Supreme Court demonstrate that the court, like a good umpire, is strongly committed to applying the law as written and to following the rule of law wherever it leads. The court understands that there are right answers and wrong answers when interpreting a written constitution or statutory enactment, and it is committed to fi nding the right answer even when it disagrees with the wisdom of the law or the policy choices reflected in the law.

Moreover, not only does the Nebraska Supreme Court strive to faithfully follow the rule of law, its opinions often reveal a deep understanding of the proper role of the judiciary in a free and democratic society. Th e court has eloquently expressed its commitment to the constitutional process of separation of powers and the limited role of the judiciary “to set policy in areas constitutionally reserved to the legislature’s plenary power.” It has written what amounts to a learned treatise on a court’s sacred duty to “carry into eff ect the intent and purpose of the framers of the Constitution” by interpreting the Nebraska Constitution in accordance with its “most natural and obvious meaning” and in light of the “meaning that obviously would be accepted and understood by laypersons.” The Nebraska Supreme Court has also recently and powerfully expressed its “zealous” commitment to protecting the reserved power of the people of Nebraska to amend the state constitution directly through the initiative process. The Court has also made clear that the Nebraska Constitution expresses “the supreme written will of the people” and thus it is inappropriate for the court “to read into it that which is not there.”

Although there may be a few decisions of the court that may give pause to some and justify watchful vigilance by the people of the state—and there is reason to be particularly concerned about the court’s recent decision in Mata declaring death-by-electrocution unconstitutional—on balance it is this reporter’s conclusion that the people of Nebraska have a court we can be proud of, a court that is committed (most of the time) to judicial restraint and a jurisprudence of originalism. In short, the Nebraska Supreme Court understands that, like a good umpire, its job is not to make the rules, but rather to make sure “that everybody plays by the rules.”

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