Thursday’s decision by the Maine Supreme Judicial Court, which forces the LePage administration to move forward with Medicaid expansion, was a setback for the governor but hardly a surprise.

Gov. Paul LePage has had some success in his fight against expanding Medicaid eligibility to Mainers who earn less than $16,700 a year, which has been allowed under the Affordable Care Act throughout his time in office. For years, he was able to stymie the Legislature from passing an expansion plan, but his efforts to fight implementation of last year’s citizen-initiatiated expansion mandate have been for naught, as the courts have continuously ruled against him along the way.

LePage is hardly alone in his opposition to Medicaid expansion. More than a dozen other states have failed to sign on, but they’re mostly in the South, West or Midwest. LePage has also had the support of many Maine Republicans, who have mostly fought efforts to implement Medicaid expansion, with a few notable exceptions. Now, with the courts stepping in, that opposition is increasingly looking like a moot point: even if LePage successfully runs out the clock, the next governor — no matter who it is — will likely have to expand Medicaid.

Unfortunately, this isn’t the only public policy issue that’s ended up in the courts recently. There have also been significant legal fights over ranked-choice voting, which, the state supreme court advised, could be partially unconstitutional but had to be implemented in the areas where there was no conflict. And a fight over the funding of the Clean Elections program ended up being decided in court.

At the federal level, this is fairly common. Advocates frequently use the judicial system to accomplish what they couldn’t politically, either by having laws overturned or by changing the interpretation of current law. Thus, the federal nomination process has become mired in controversy, as both sides see the appointment of judges sympathetic to their cause as the best means to pursue public policy goals.

We see this not only with the battle royale that erupts each time there’s a Supreme Court vacancy, but also with the effort from both parties to confirm as many lower court judges as they can when they have the opportunity.


In Maine — even though we have a system where the governor appoints most judges to seven-year terms — we’ve largely managed to avoid such controversies. LePage has done a good job appointing judges throughout his time in office, choosing experienced lawyers from both parties. The judge who ruled against the administration on the Clean Elections dispute was a former Democratic mayor of Augusta, William Stokes, who LePage appointed and who was unanimously confirmed by the Senate (and rightfully so). The vast majority of Gov. LePage’s nominations to the state bench have sailed through the Maine Senate without any controversy.

If, however, public policy disputes continue to get punted to the state judicial branch, that may change. We could see both parties get more involved in the selection of judges, and fights over nominations could become more partisan. Instead of considering nominees by their entire career, as the Maine Senate currently does, we might see nominations get boiled down to a few hot-button issues, like gun control, abortion or campaign finance. Fortunately, Maine still has plenty of opportunities to avoid this fate, and they don’t involve switching to a system of elected judges, as is used in so many other states — that involves plenty of its own perils (just ask former Supreme Court Justice Sandra Day O’Connor).

We also can’t simply assume that a changing of the guard in the Blaine House will result in fewer policy disagreements being decided by the judiciary. The next governor, whomever that may be, could be more or less inclined to go to court, but the minority party might be the one attempting to get judges to step in instead.

It’s incumbent on everyone involved in Maine politics to ensure that our judicial branch remains independent.

The next governor and Legislature should work together to keep disagreements out of the courts. They should also do their best to responsibly implement citizen initiatives, even when they disagree, rather than handicap or repeal them.

In turn, outside advocates need to give their proposals a full vetting process, to make sure there aren’t constitutional issues, like there were with ranked-choice voting. If they cost money, they should be funded as part of the referendum, not left up to the Legislature.

If everyone behaves more responsibly, we can keep our state courts from becoming the political battleground that they have federally.

Jim Fossel, a conservative activist from Gardiner, worked for Sen. Susan Collins. He can be contacted at: [email protected]

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